Jenkins v. Allen
Filing
57
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/31/2016. (JLC)
FILED
2016 Aug-31 AM 09:34
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-cv-00869-VEH
)
RICHARD ALLEN, Commissioner, )
Alabama Department of Corrections, )
)
Respondent.
)
__________________________________________________________________
MEMORANDUM OPINION
The petitioner, Mark Allen Jenkins (“Jenkins”), seeks habeas corpus relief from
his state court capital murder conviction and death sentence. See 28 U.S.C. § 2254.
Table of Contents
I.
PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
THE OFFENSE OF CONVICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III.
THE SENTENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IV.
THE SCOPE OF FEDERAL HABEAS REVIEW. . . . . . . . . . . . . . . . . 15
A.
Exhaustion of State Court Remedies. . . . . . . . . . . . . . . . . . . . . . . 16
B.
The Procedural Default Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.
General Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.
Overcoming Procedural Default. . . . . . . . . . . . . . . . . . . . . . . 22
a.
The “Cause and Prejudice” Standard.. . . . . . . . . . . . . 24
i.
ii.
b.
C.
“Cause”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
“Prejudice”. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The “Fundamental Miscarriage of Justice” Standard
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The Statutory Overlay: The Effect of “the Antiterrorism and
Effective Death Penalty Act of 1996” on Habeas Review . . . . . . . . . 28
1.
28 U.S.C § 2254(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.
28 U.S.C § 2254(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
a.
The Meaning of § 2254(d)(1)’s “Contrary To”
Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
b.
The Meaning of § 2254(d)(1)’s“Unreasonable
Application” Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
c.
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”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
d.
Evaluating State Court Factual Determinations
under 28 U.S.C. §§ 2254(d)(2) and (e)(1) . . . . . . . . . . 38
D.
The Burden of Proof and Heightened Pleading Requirements
for Habeas Petitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
E.
Introduction to Ineffective Assistance of Counsel Claims. . . . . . . 43
1.
The Performance Prong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ii
2.
3.
V.
The Prejudice Prong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Deference Accorded State Court Findings of Historical
Fact, When Evaluating Ineffective Assistance of Counsel
Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
JENKINS’S CLAIMS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
A.
Mr. Jenkins Was Deprived of his Constitutional Right to an
“Impartial, Indifferent” Jury when a Juror Repeatedly Failed
To Answer Critical Questions during Voir Dire. . . . . . . . . . . . . . 52
B.
The Eighth Amendment Prohibits Executing Mr. Jenkins
because He Is Mentally Retarded.. . . . . . . . . . . . . . . . . . . . . . . . . 77
C.
Trial Counsel’s Inadequate Performance Deprived Mr.
Jenkins of the Effective Assistance of Counsel.. . . . . . . . . . . . . . . 77
1.
Counsel’s Deficient Performance Deprived Mr. Jenkins of
the Effective Assistance of Counsel during the Penalty
Phase.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
a.
b.
Jenkins’s age at the time of the offense; lack of
significant criminal history; and severe intoxication. . . 110
c.
Jenkins’s model behavior and positive adjustment to
pretrial incarceration. . . . . . . . . . . . . . . . . . . . . . . . . . 126
d.
2.
Evidence relating to Jenkins’s childhood and
background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Failure to request a continuance.. . . . . . . . . . . . . . . . . 132
Counsel’s Deficient Performance Deprived Mr. Jenkins of
the Effective Assistance of Counsel during the Sentencing
Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
iii
3.
Trial Counsel Failed To Object and Take Action To Ensure
Appellate Review of the Prosecutor’s Discriminatory Use of
Peremptory Challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
a.
b.
Failure to take action to insure appellate review of the
prosecutor’s discriminatory use of peremptory
challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
c.
4.
Failure to object to the prosecutor’s discriminatory
use of peremptory challenges.. . . . . . . . . . . . . . . . . . . 139
Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Counsel’s Deficient Performance Deprived Mr. Jenkins of
the Effective Assistance of Counsel during the Guilt Phase. . 179
a.
Lack of sufficient funding. . . . . . . . . . . . . . . . . . . . . . 180
b.
Failure to object to original co-counsel’s conflict of
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
c.
Failure to interview Sarah Harris. . . . . . . . . . . . . . . . . 194
d.
Failure to interview Doug Thrash. . . . . . . . . . . . . . . . 200
e.
Failure to interview Frieda Vines.. . . . . . . . . . . . . . . . 205
f.
Failure to discover that another suspect was detained
and questioned in connection with the victim’s
murder.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
g.
Failure to conduct appropriate voir dire. . . . . . . . . . . . 219
h.
Failure to make numerous objections at trial. . . . . . . . 221
i.
Failure to present a coherent and consistent theory of
defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
iv
5.
The Cumulative Effect of Counsel’s Errors Deprived Mr.
Jenkins of the Effective Assistance of Counsel. . . . . . . . . . . 228
D.
The State Failed to Disclose Brady Evidence to the Defense. . . . 230
E.
The Trial Court’s Unconstitutional Instructional Errors. . . . . . 239
1.
2.
The Trial Court’s Failure to Instruct the Jury on
Voluntariness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
3.
The Trial Court’s Improper Instruction Regarding Mr.
Jenkins’s Failure To Testify.. . . . . . . . . . . . . . . . . . . . . . . . . 257
4.
The Trial Court’s Erroneous Instruction Concerning
Circumstantial Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
5.
The Trial Court’s Improper Reasonable Doubt Instructions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
6.
F.
The Trial Court’s Failure to Instruct the Jury on Applicable
Lesser-Included Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 239
The Trial Court’s Reference to the Jury’s Verdict as
“Merely Advisory” Was Improper and Prejudicial.. . . . . . . . 276
The Prosecutors Engaged in Misconduct throughout Mr.
Jenkins’s Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
1.
Prosecutor’s Prejudicial Comments in the Guilt Phase. . . . . . 282
a.
The prosecutor improperly commented on
Jenkins’s failure to testify, and “improperly
shifted the burden” to Jenkins. . . . . . . . . . . . . . 283
b.
The prosecutor misused irrelevant and
prejudicial photos to inflame the jury.. . . . . . . . 293
v
c.
d.
The prosecutor injected unsworn and
inflammatory testimony that was not admitted
into evidence, and had been excluded. . . . . . . . 297
e.
2.
The prosecutor repeatedly expressed personal
opinions and vouched for the quality of the
prosecution’s case and witnesses.. . . . . . . . . . . 294
The prosecutor misstated the law on
reasonable doubt, improperly encouraged the
jury to speculate about the existence of
evidence where the State’s proof was lacking,
and misstated the elements of capital murder,
robbery as an aggravating circumstance,
kidnapping as an aggravating circumstance,
robbery as an afterthought, and the state’s
burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . 299
Prosecutor’s Prejudicial Comments in the Penalty Phase. . . . 303
a.
The prosecutor improperly argued for the
existence of non-statutory aggravating
circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . 306
b.
The prosecutor improperly encouraged the jury
to reject mercy and improperly compared the
victim’s rights to Mr. Jenkins. . . . . . . . . . . . . . 307
c.
The prosecutor improperly encouraged the jury
to vote for death to deter others. . . . . . . . . . . . . 310
G.
The Evidence of Capital Murder Was Insufficient To Convict
Mr. Jenkins beyond a Reasonable Doubt.. . . . . . . . . . . . . . . . . . 312
H.
The Trial Court’s Sentencing Errors. . . . . . . . . . . . . . . . . . . . . . 318
vi
I.
J.
The Trial Court’s Wholesale Adoption of the State’s Proposed
Findings of Fact Was Unreasonable.. . . . . . . . . . . . . . . . . . . . . . 332
K.
VI.
Mr. Jenkins Was Deprived of a Fair Trial by the State’s
Racially Discriminatory Use of Peremptory Challenges. . . . . . . 324
The Manner of Execution Used by the State of Alabama
Constitutes Cruel and Unusual Punishment.. . . . . . . . . . . . . . . . 338
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
vii
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.
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 began on March
12, 1991. (C.R. Vol. 45, Tab 73). 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,
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 first Rule 32 proceedings
are designated “(Rule 32 C.R. __ )” and references to the transcript of the Rule 32 hearing are
designated “(Rule 32 R. __ ).” References to the court record of the second Rule 32 proceedings are
designated “(Second Rule 32 C.R. __ ).” The court will attempt 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 those numbers are the most readily discoverable for purposes of expedient examination
of that part of the record. Otherwise, the page numbers correspond with those listed at the upper right
hand corner of the record. Additionally, for the reader’s benefit, the court has cited to any easily
identifiable tab numbers close to any cited material.
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. He testified that Jenkins was
a good friend, who was helpful, generous, and kind. Seal further testified that he trusted Jenkins, even
with his wife and baby. (R. Vol. 9, Tab 19 at 1718-27).
1
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 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, Tab 28; C.R.
Vol. 13, Tabs 30 and 32). The Alabama Court of Criminal Appeals affirmed Jenkins’s
convictions and sentence on February 28, 1992, and denied his application for
rehearing on April 17, 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 timely filed a Rule 32 petition in
5
The transcript of the sentencing hearing is located at R. Vol. 9, Tabs 25-26.
6
Jenkins was represented by his current counsel, Joseph T. Flood, Esq.
2
the St. Clair County Circuit Court. (Rule 32 C.R. Vol. 17, Tab. 42). Jenkins filed an
amended petition on November 26, 1996, after the applicable two-year limitations
period had expired.7 (Rule 32 C.R. Vol. 18, Tab 47). An evidentiary hearing was held
on December 10, 1996, and January 20-21, 1997. (Rule 32 R. Vol. 19, Tab 48 at 1 Rule 32 R. Vol. 22 at 700). On December 31, 1997, the trial court denied the petition.
(Rule 32 C.R. Vol. 45, Tab 77).
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. Jenkins v. State,
972 So. 2d 111 (Ala. Crim. App. 2004). The Alabama Court of Criminal Appeals
denied Jenkins’s application for rehearing on May 21, 2004. Id.
On April 8, 2005, the Alabama Supreme Court reversed the judgment of the
Alabama Court of Criminal Appeals “insofar as it held that Jenkins’s claim of juror
misconduct, presented for the first time in his amended petition, could not be
considered because it did not relate back to his original petition,” and remanded the
cause for further proceedings. Ex parte Jenkins, 972 So. 2d 159, 165 (Ala. 2005).
The Alabama Supreme Court affirmed the Court of Criminal Appeals’ affirmance of
the trial court’s denial of the other claims raised in Jenkins’s Rule 32 petition. Id.
7
Rule 32.2(c), Ala. R. Crim. P. (This rule was amended, effective August 1, 2002, to shorten the
limitations period to one year.)
3
On remand, the Alabama Court of Criminal Appeals affirmed the trial court’s
denial of the juror misconduct claim, based upon the trial court’s finding that the claim
was procedurally barred because it was not raised at trial or on direct appeal. Jenkins
v. State, 972 So. 2d 165 (Ala. Crim. App. 2005). The Alabama Court of Criminal
Appeals denied Jenkins’s application for rehearing on April 14, 2006. Id. The Alabama
Supreme Court denied his petition for writ of certiorari on May 18, 2007. Id. 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 October 1, 2008, Jenkins filed a second Rule 32 petition in state court,
realleging his juror misconduct claim. (Second Rule 32 C.R. Vol. 1, Tab 1). On
November 25, 2008, the trial court issued an order dismissing the petition as
procedurally barred and denying the petition on the merits. (Second Rule 32 C.R. Vol.
9, Tab 18). The Alabama Court of Criminal Appeals affirmed the trial court’s denial
of the petition on August 26, 2011. Jenkins v. State, 105 So. 3d 1234 (Ala. Crim. App.
4
2011). The Alabama Supreme Court granted certiorari for the limited purpose of
reviewing Jenkins’s claim that the trial court erroneously adopted verbatim the state’s
proposed order dismissing the petition. Ex parte Jenkins, 105 So. 3d 1250 (Ala. 2012).
On September 21, 2012, the Alabama Supreme Court affirmed the appellate court’s
judgment upholding the trial court’s adoption of the state’s proposed order denying the
Rule 32 petition, and denied certiorari on the remaining grounds raised by Jenkins. Id.
The United States Supreme Court denied Jenkins’s petition for a writ of certiorari on
March 25, 2013. Jenkins v. Alabama, 133 S. Ct. 1634 (2013).
On June 20, 2013,
Jenkins filed an amended petition in this court, 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).
On November 14, 2013, Jenkins filed a Motion for an Evidentiary Hearing on
on his claim that he is mentally retarded under Atkins v. Virginia, 536 U.S. 304 (2002).
(Doc. 49). The respondent filed an opposition to the motion on September 22, 2014,
(doc. 51), and Jenkins filed a reply to the respondent’s opposition on October 8, 2014
(doc. 52). On March 31, 2015, the court denied Jenkins’s Atkins claim and his motion
for an evidentiary hearing on that claim. (Doc. 54).
5
II. THE OFFENSE OF CONVICTION
The Alabama Court of Criminal Appeals set out the evidence in its opinion on
direct appeal:
The state’s evidence tended to show that in the late afternoon of
April 21, 1989, the nude body of an unidentified female was found on an
embankment on the side of interstate highway 59 south near Pelham,
Alabama. The body was badly decomposed and was later identified by
dental records as Tammy Hogeland. The cause of death was manual
strangulation. The victim’s hyoidal bone was fractured which is consistent
with a manual strangulation as opposed to other types of strangulation.
Several items of clothing were recovered from the scene: a ladies
watch, a blue apron, a pair of ladies white tennis shoes, a brassiere, a pair
of black slacks, and a hair net. Other items found at the scene were an
owner’s manual for a Mazda RX7 automobile, a fraternity card,
photographs, a cable TV guide, a road map, a work order for repair on a
Mazda automobile, and several beer and soft drink cans.
Tammy Hogeland was last seen in the early morning hours of April
18, 1989, at the Airport Omelet Shoppe restaurant in Birmingham where
she was working. She was scheduled to work that evening at the
Riverchase Omelet Shoppe, but when an employee did not come to work
at the Airport Omelet Shoppe, she was asked to work there. Her sister,
Wendy Hogeland, and her sister’s boyfriend drove the [victim] to the
Airport Omelet Shoppe at around 10:00 p.m. on the evening of April 17.
Wendy Hogeland testified at trial that Tammy at that time had on her
jewelry, which included a Citizens brand watch, a necklace with the
words “special sister,” a class ring with a topaz stone, and a diamond
cluster engagement ring. That evening the victim was working as a cook,
and she was wearing a blue apron, black pants, a white shirt, and a pair
of white shoes. Early in the morning of April 18, the victim and Sarah
Harris were the only employees working at the Airport Omelet Shoppe.
At about 2:00 a.m. Sarah Harris observed a red sports car being driven
into the parking lot. She stated that she remembered the car because it
6
almost jumped the curb and came through the glass wall of the restaurant.
Harris identified the appellant, Mark Allen Jenkins, as the individual
driving the car and stated that he appeared to be intoxicated when he
came to the Omelet Shoppe. The appellant walked over to the victim and
began talking to her. Harris saw the victim and the appellant drive off in
the red sports car. She could not testify at trial whether the victim went
willingly or was abducted. Testimony did reveal that the victim was a
heavy smoker and that she left behind her cigarettes, her lighter, her
purse, and her paycheck, which had been issued that evening. Harris had
also worked with the victim on several occasions and said that she had
never before left the shop without telling anyone as she did that evening.
Later, at around 5:00 a.m. on the morning of April 18, Geraldine
and Bobby Coe were at a Chevron gasoline service station on I-59, when
they saw an individual in a red sports car. They identified the individual
in the car as appellant Jenkins. They also stated that a female was in the
front passenger seat of the car and that she appeared to be “passed out.”
They could not say whether she was alive or dead. While Bobby Coe was
pumping gas, the appellant approached him and asked him for some
cigarettes. Coe gave the appellant some cigarettes, and the appellant said,
“looks like it’s been a long night and it looks like it’s going to be a long
day.” The appellant then told Coe, “God bless you,” and as he was
walking back to the red sports car he asked Coe how to get to interstate
highway 459. Coe gave him directions. They both got into their respective
vehicles and left the station. The Coes, each driving a different car, drove
out of the gas station. Bobby Coe stated that he saw the car driven by the
appellant follow him for awhile, flash his lights, slow down, and then pull
to the side of the road between mile markers 151 and 152. This is the area
where Tammy Hogeland’s body was found approximately three days
later.
By agreement, a statement made by Christine Nicholas was
received into evidence. Nicholas told police that she had known the
appellant for several months and that she had met him at the Omelet
Shoppe where she worked. She further stated that the appellant was at her
home on the evening of April 17 and that he stayed at her home until
approximately 2:00 a.m. on the morning of April 18. She stated that the
7
appellant was very intoxicated and that he was attempting to seduce her.
She resisted and the appellant got “real mad” and asked her several times
what she would do if someone came up from behind her and grabbed her.
At approximately 1:00 a.m., the appellant and Nicholas went to the
Riverchase Omelet Shoppe. The appellant went inside the Omelet Shoppe
and talked with one of the waitresses. Shortly after this, the appellant and
Nicholas returned to her home, and the appellant fell asleep on the couch.
Around 2:00 a.m. the appellant was asked to leave by Ms. Nicholas’s
mother. When he left, he fell down some steps and then rammed his car
into another vehicle. Nicholas also stated that she saw the appellant later
in the morning of April 18 at a Delchamps grocery store. The appellant
was making a telephone call, looking at a newspaper, and attempting to
sell his automobile, an old model Buick Century. At this time Nicholas
loaned the appellant $4.00 so that he could get some gasoline for his car.
Douglas Thrash, a manager of the Riverchase Omelet Shoppe, saw
the appellant at around 1:00 a.m. on the morning of April 18 at the
Riverchase Omelet Shoppe. Thrash said that he recognized the appellant
because he was a regular customer at the restaurant. The appellant spoke
with Frieda Vines, one of the waitresses. Thrash heard mention of, at one
point in the conversation, the Omelet Shoppe near the airport. Thrash also
stated that the appellant knew all of the waitresses, including the victim,
because he was a regular customer and that he talked with them all when
he was in the restaurant.
Testimony also established that the appellant sold his car around
10:00 a.m. on the morning of April 18, to Michael Brooks, a mechanic at
the Alford Avenue Chevron gasoline service station in Birmingham. He
told Brooks that his mother was sick and that he needed money to go
home to California. One of the attendants at the service station took the
appellant to the bus station between 11:30 and 12:00 p.m. that day. A
ticket agent for Greyhound bus lines testified that she sold two tickets that
day between 12:00 and 2:00 p.m. The two destinations were Houston,
Texas, and Tulsa, Oklahoma.
When the appellant was living in Birmingham, he was sharing a
house with Mitchell Babb. The house was a one-bedroom bungalow with
8
no electricity. Evidence established that the appellant was in financial
trouble. The house was owned by John Angwin. Angwin testified that the
appellant lived in the house for approximately two months, that he paid
no rent, and that he allowed the appellant to stay there so that the
appellant could keep his job at a landscape company.
The evidence presented further established that near the appellant’s
residence in Birmingham was a gasoline service station, Rocky Rid[ge]
Road Service Station, where the appellant did some odd jobs. This station
was managed by Leon Wooten. About 10 days before the homicide, a red
Mazda RX7 automobile was brought into the service station for routine
maintenance work. While the car was at the service station, the appellant
was working there. Approximately two days before the homicide, the
appellant was at the station more frequently, and he parked his Buick
automobile there. He told the manager of the station that he wanted to
leave his car there because he did not want the person who sold him the
car, John Angwin, to know when he was driving the car. On April 18, one
of the managers of the Rocky Rid[ge] Road Service Station noticed that
the ignition to the service truck had been tampered with. When the
manager discovered this, the appellant was at the station putting some
gasoline in his Buick. The manager asked the appellant if he knew
anything about the service truck and he replied that his Buick had also
been tampered with. Later in the day when the owner of the red Mazda
came to pick his car up from the station, it was gone. The car was later
recovered on I-459 near Leeds. While the Mazda was at the service
station, the keys to it were left in the car above the visor. The manager of
the station said that they always left car keys above the visors.
Steve Musser testified that he had known the appellant for
approximately six months prior to the murder. On the day before the
victim disappeared, the appellant approached Musser and asked him if he
wanted to buy a chainsaw. At this time the appellant was dressed in jeans
and a pullover shirt. After talking for several minutes, the appellant left.
On the morning of April 18, the appellant again came to see Musser and
was dressed in the same clothes that he had on the day before. The
appellant told Musser that someone had stolen his car the night before,
and he asked him if he would say that he had been with him all night.
9
Musser refused and the appellant stayed and talked for about 15 minutes
and left. Musser did not see the appellant again.
The appellant was identified as a suspect by Michael Weems, a
Hoover Police Officer. Weems went to the Omelet Shoppe where the
victim worked every day. He knew that the appellant knew the victim and
that when the appellant was in the restaurant he would talk with her and
that on several occasions he had passed notes to her on napkins.
The owners of the Mazda identified the car recovered off I-459 as
their vehicle. They further identified items found near the victim's body as
items that were in the Mazda when they took the car in to the Rocky
Rid[ge] Road Service Station for repairs. Several business cards from a
golf professional at Delray Beach Municipal Golf Course in Florida were
identified as those that were in the glove compartment of the Mazda.
Hair fibers collected from the victim and items of her clothing
tended to establish her presence in the red Mazda automobile. Fibers from
the seat of the automobile were found on her underclothing. Hair fibers
consistent with those from the victim were found on the car seat and on
the storage area behind the seats. A pubic hair identified as that of the
victim’s was found on the passenger floorboard mat. Hair fibers collected
from some of the appellant’s clothing connected him to the red Mazda.
Forty-six car seat fibers were found on the appellant’s blue jeans. Fibers
from the appellant’s blue jeans were also discovered on the victim’s
apron.
Mitchell Babb, the appellant’s roommate in Birmingham, identified
boots that were recovered from the appellant’s uncle in California as
being like boots that the appellant wore. A boot print found at the scene
of the crime was identified as being consistent with the heel of the boots
recovered from the appellant’s uncle.
A prisoner who was a cellmate of the appellant in the St. Clair
County jail, testified that the appellant approached him several times
while they were in jail and talked about the murder. He said that the
appellant feared that he would be transferred to Jefferson County because
10
the victim was married to or was going to marry a Jefferson County
deputy sheriff. According to this witness, the appellant was afraid that the
people from the service station, the Coes, would identify him and he was
also afraid that the police would find his fingerprints on a beer can left at
the scene, according to this witness. The witness also said that Jenkins
told him that “he had done the crime.”
Jenkins v. State, 627 So. 2d 1034, 1037-40 (Ala. Crim. App. 1992) (alterations added)
(footnote omitted).
III. THE SENTENCE
The following excerpt is taken from the written order of the sentencing court:
This Court has considered all of the relative testimony relating to
aggravating circumstances as set out in Title 13A-5-49, of the 1975 Code
of Alabama, and also considered all mitigating circumstances as set out
in Title 13A-5-51 of the 1975 Code of Alabama, together with other
mitigating circumstances not set out in the above Code Section.
AGGRAVATING CIRCUMSTANCES
At the sentence hearing before the jury and the sentence hearing
before this Court, the State of Alabama stated to the Court that they were
relying on the following aggravating circumstances.
1.
The capital offense was committed while the defendant was
engaged [in] or was an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting to
commit, robbery.
2.
The capital offense was committed while the defendant was
engaged [in] or was an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting to
commit kidnapping.
11
There was no statement made by the District Attorney that he was
relying on any of the other aggravating circumstances as set out in Title
13A-5-49 of the Code of Alabama. No evidence was offered at any state
of the proceedings that would justify a finding that:
1.
The capital offense was committed by a person under sentence of
imprisonment; or
2.
The defendant was previously convicted of another capital offense
or a felony involving the use or threat of violence to the person; or
3.
The defendant knowingly created a great risk of death to many
persons; or
4.
The capital offense was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape from custody; or
5.
The capital offense was committed for pecuniary gain; or
6.
The capital offense was committed to disrupt or hinder the lawful
exercise of any governmental function or the enforcement of laws;
or
7.
The capital offense was especially heinous, atrocious or cruel
compared to other capital offenses.
This Court is convinced beyond a reasonable doubt that on April
18, 1989 at some time after 2:00 a.m. on said date, the Defendant Mark
Allen Jenkins robbed the victim Tammy Ruth Hogeland and in the
process of the robbery, the victim Tammy Ruth Hogeland was murdered
by means of strangulation by the Defendant. The Defendant did, in fact,
rob the victim by taking certain items of personal property which has been
set out in the findings of facts above; or, that the Defendant Mark Allen
Jenkins, at some time around 2:00 a.m. on April 15, 1989 or thereafter,
kidnapped the victim Tammy Ruth Hogeland and in the process of the
kidnapping, the victim was murdered by the Defendant by strangulation.
12
Therefore, this Court does find as an aggravating circumstance that
the capital offense was committed while the defendant was engaged or
was an accomplice in the commission of, or an attempt to commit, or
flight after committing robbery; and, that the capital offense was
committed while the defendant was engaged [in] or was an accomplice in
the commission of, or an attempt to commit, or flight after committing, or
attempting to commit, kidnapping.
MITIGATING CIRCUMSTANCES
This Court has considered all of the mitigating circumstances as
enumerated in Title 13A-5-51, 1975 Code of Alabama. This Court does
find as a mitigating circumstance that,
1.
The defendant has no significant history of prior criminal activity.
Even though the Defendant had been convicted of at least two
misdemeanors, this Court would not consider that as a significant
history of criminal activity as a mitigating circumstance in a capital
offense.
2.
This Court has considered the mitigating circumstance that the
capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance. After
considering said mitigating circumstance there was no evidence
introduced for this Court’s consideration that would justify a
finding for this mitigating circumstance.
3.
The Court, after having considered [the] mitigating circumstance
that the victim was a participant in the defendant’s conduct or
consented to it, does not find that there was any evidence that
would substantiate this mitigating circumstance.
4.
The Court, after having considered [the] mitigating circumstance
that the defendant was an accomplice in the capital offense
committed by another person and his participation was relatively
minor, does not find that there was any evidence that would
substantiate this mitigating circumstance.
13
5.
The Court, after having considered [the] mitigating circumstance
that the defendant acted under extreme duress or under the
substantial domination of another person, does not find that there
was any evidence that would substantiate this mitigating
circumstance.
6.
The capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired. The Court does find that there was evidence
that the defendant, at some time during the night of April 17th or
morning of April 18th had consumed alcoholic beverage [sic], but
the Court does not find that at the time of the commission of the
capital offense the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired. The
Defendant’s conduct, at approximately 5:00 a.m. on the 18th at the
service station, and his conversation with the two Coe witnesses
and his later recollection of the events that occurred surrounding
the commission of the offense, would indicate that the defendant’s
capacity to appreciate the criminality of his conduct or to conform
his conduct to the requirements of law was not substantially
impaired to the extent as required in this mitigating circumstance.
7.
Even though the Defendant was twenty one years of age at the time
of the crime, this Court does find that the age of the defendant at
the time of the crime was a mitigating circumstance.
This Court has further considered the pre-sentence report going into
the background of the Defendant prior to the commission of the offense
and also all of the mitigating circumstances as set out in the Defendant’s
Attorney’s pre-sentence memorandum and all of the mitigating
circumstances enumerated in Title 13A-5-51 of the Code of Alabama.
The Court does further consider the fact that the jury, after hearing
the evidence in the case, the aggravating and mitigating circumstances at
the sentence hearing, the jury made the recommendation that the death
penalty be imposed.
14
After considering all of the aggravating and mitigating
circumstances, this Court finds that the aggravating circumstances as
considered by this Court outweigh the mitigating circumstances as
considered by this Court, and that said aggravating circumstances are
such to uphold the jury and this Court’s finding of punishment by death.
It is therefore the judgment of this Court that the recommendation
by the jury that the defendant be punished by death is accepted by this
Court. This Court has heretofore, on this date, in open Court, found the
defendant guilty, therefore be it ORDERED that the Defendant be and is
hereby sentenced to suffer the penalty of death.
(C.R. Vol. 45, Tab 73 at 16-19) (alterations added).
IV. THE SCOPE OF FEDERAL HABEAS REVIEW
“The habeas statute unambiguously provides that a federal court may issue the
writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1,
5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s review of claims seeking
habeas relief is limited to questions of federal constitutional and statutory law. Claims
that turn solely upon state law principles fall outside the ambit of this court’s authority
to provide relief under § 2254. See Alston v. Department of Corrections, 610 F. 3d
1318, 1326 (11th Cir. 2010) (holding that a claim addressing either “an alleged defect
in a collateral proceeding,” or a state court’s “interpretation of its own law or rules,”
does not provide a basis for federal habeas relief) (citations omitted).
15
A.
Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review
A habeas petitioner is required to present his federal claims to the state court,
and to exhaust all of the procedures available in the state court system, before seeking
relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666
(2005) (holding that a petitioner “can seek federal habeas relief only on claims that
have been exhausted in state court”). That requirement serves the purpose of ensuring
that state courts are afforded the first opportunity to address federal questions affecting
the validity of state court convictions and, if necessary, correct violations of a state
prisoner’s federal constitutional rights. As explained by the Eleventh Circuit:
In general, a federal court may not grant habeas corpus relief to a
state prisoner who has not exhausted his available state remedies. 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”). “When the process
of direct review . . . comes to an end, a presumption of finality and
legality attaches to the conviction. . . . The role of federal habeas
proceedings, while important in assuring that constitutional rights are
observed, is secondary and limited. Federal courts are not forums in
which to relitigate state trials.” Smith v. Newsome, 876 F.2d 1461, 1463
(11th Cir. 1989) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).
Exhaustion of state remedies requires that the state prisoner “fairly
presen[t][8] federal claims to the state courts in order to give the State the
8
The phrases “fairly presented” and “properly exhausted” are synonymous. O’Sullivan
v. Boerckel, 526 U.S. 838, 848 (1999) (observing that the question is “not only whether
16
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing
Picard v. Connor, 404 U.S. 270, 275-76 (1971) (internal quotation marks
omitted). The Supreme Court has written these words:
[T]hat the federal claim must be fairly presented to the state
courts . . . . it is not sufficient merely that the federal habeas
applicant has been through the state courts. . . . Only if the
state courts have had the first opportunity to hear the claim
sought to be vindicated in a federal habeas proceeding does
it make sense to speak of the exhaustion of state remedies.
Picard, 404 U.S. at 275, 92 S. Ct. at 512. See also Duncan, 513 U.S. at
365, 115 S. Ct. at 888 (“Respondent did not apprise the state court of his
claim that the evidentiary ruling of which he complained was not only a
violation of state law, but denied him the due process of law guaranteed
by the Fourteenth Amendment.”).
Thus, to exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal constitutional
issues. “It is not enough that all the facts necessary to support the federal
claim were before the state courts or that a somewhat similar state-law
claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6, 103 S. Ct. 276,
277, 74 L. Ed. 2d 3 (1982) (citations omitted).
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (first and third alterations
and redactions in original) (footnote added).
B.
The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review
1.
General principles
a prisoner has exhausted his state remedies, but also whether he has properly
exhausted those remedies, i.e., whether he has fairly presented his claims to the state
courts”) (“properly” emphasized in original, all other emphasis added).
17
It is well established that, if a habeas petitioner fails to raise his federal claim in
the state court system at the time and in the manner dictated by the state’s procedural
rules, the state court can decide the claim is not entitled to a review on the merits.
Stated differently, “the petitioner will have procedurally defaulted on that claim.”
Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2009) (emphasis added). The so-called
“procedural default” doctrine was explained by the Supreme Court in Woodford v. Ngo,
548 U.S. 81 (2006), as follows:
In habeas, the sanction for failing to exhaust properly (preclusion of
review in federal court) is given the separate name of procedural default,
although the habeas doctrines of exhaustion and procedural default “are
similar in purpose and design and implicate similar concerns,” Keeney v.
Tamayo–Reyes, 504 U.S. 1, 7 (1992). See also Coleman v. Thompson,
501 U.S. 722, 731–732, 111 S. Ct. 2546 (1991). In habeas, state-court
remedies are described as having been “exhausted” when they are no
longer available, regardless of the reason for their unavailability. See Gray
v. Netherland, 518 U.S. 152, 161, 116 S. Ct. 2074, 135 L. Ed. 2d 457
(1996). Thus, if state-court remedies are no longer available because the
prisoner failed to comply with the deadline for seeking state-court review
or for taking an appeal, those remedies are technically exhausted, ibid.,
but exhaustion in this sense does not automatically entitle the habeas
petitioner to litigate his or her claims in federal court. Instead, if the
petitioner procedurally defaulted those claims, the prisoner generally is
barred from asserting those claims in a federal habeas proceeding. Id., at
162, 116 S. Ct. 2074; Coleman, supra, at 744–751, 111 S. Ct. 2546.
Woodford, 548 U.S. at 92-93.
Generally, if the last state court to examine a claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
18
and that procedural bar provides an adequate and independent state ground for denying
relief, then federal review of the claim also is precluded by federal procedural default
principles. See Cone v. Bell, 556 U.S. 449, 465 (2009); Coleman v. Thompson, 501
U.S. 722, 731 (1991) (“When a petitioner fails to raise his federal claims in compliance
with relevant state procedural rules, the state court’s refusal to adjudicate the claim
ordinarily qualifies as an independent and adequate state ground for denying federal
review.”) (alteration added).
The federal courts’ authority to review state court criminal
convictions pursuant to writs of habeas corpus is severely restricted when
a petitioner has failed to follow applicable state procedural rules in raising
a claim, that is, where the claim is procedurally defaulted. Federal review
of a petitioner’s claim is barred by the procedural default doctrine if the
last state court to review the claim states clearly and expressly that its
judgment rests on a procedural bar, Harris v. Reed, 489 U.S. 255, 263,
109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989), and that bar provides
an adequate and independent state ground for denying relief. See id. at
262, 109 S. Ct. at 1042-43; Johnson v. Mississippi, 486 U.S. 578, 587,
108 S. Ct. 1981, 1987, 100 L. Ed. 2d 575 (1988). The doctrine serves to
ensure petitioners will first seek relief in accordance with state
procedures, see Presnell v. Kemp, 835 F.2d 1567, 1578-79 (11th Cir.
1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 882, 102 L. Ed. 2d 1004
(1989), and to “lessen the injury to a State that results through
reexamination of a state conviction on a ground that a State did not have
the opportunity to address at a prior, appropriate time.” McCleskey v.
Zant, 499 U.S. 467, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991).
Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (emphasis added).9
9
“When the last state court rendering judgment affirms without explanation, [the federal court will]
presume that it rests on the reasons given in the last reasoned decision.” Mason v. Allen, 605 F.3d
19
Federal deference to a state court’s clear finding of procedural default under the
state court’s own rules is so strong that:
“[A] state court need not fear reaching the merits of a federal claim in an
alternative holding. Through its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment, even
when the state court also relies on Federal law.” Harris, 489 U.S. at 264
n.10, 109 S. Ct. 1038 (emphasis in original). See also Alderman v. Zant,
22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia habeas corpus
court found that the petitioner’s claims were procedurally barred as
successive, but also noted that the claims lack merit based on the
evidence, “this ruling in the alternative did not have an effect . . . of
blurring the clear determination by the [Georgia habeas corpus] court that
the allegation was procedurally barred”), cert. denied, 513 U.S. 1061,
115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (alterations and emphasis in
original).
at 1118 n.2 (11th Cir. 2009) (alteration added). As the Supreme Court observed in Ylst v.
Nunnemaker, 501 U.S. 797 (1991):
The problem we face arises, of course, because many formulary orders are not
meant to convey anything as to the reason for the decision. Attributing a reason is
therefore both difficult and artificial. We think that the attribution necessary for
federal habeas purposes can be facilitated, and sound results more often assured, by
applying the following presumption: Where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same ground. If an earlier opinion
“fairly appear[s] to rest primarily upon Federal law,” we will presume that no
procedural default has been invoked by a subsequent unexplained order that leaves the
judgment or its consequences in place. Similarly where, as here, the last reasoned
opinion on the claim explicitly imposes a procedural default, we will presume that a
later decision rejecting the claim did not silently disregard that bar and consider the
merits.
Id. at 803 (first alteration in original, second emphasis added) (citation omitted).
20
The Supreme Court defines an “adequate and independent” state court decision
as one that “‘rests on a state law ground that is independent of the federal question and
adequate to support the judgment.’” Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting
Coleman v. Thompson, 501 U.S. at 729) (emphasis in Lee)). The questions of whether
a state procedural rule is “independent” of the federal question and “adequate” to
support the state court’s judgment, so as to have a preclusive effect on federal review
of the claim, “‘is itself a federal question.’” Id. (quoting Douglas v. Alabama, 380 U.S.
415, 422 (1965)).
To be considered “independent” of the federal question, “the state court’s
decision must rest solidly on state law grounds, and may not be ‘intertwined with an
interpretation of Federal law.’” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
(quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). An example of
intertwining would be when “the State has made application of the procedural bar
depend on an antecedent ruling on Federal law, that is, on the determination of whether
federal constitutional error has been committed.” Ake v. Oklahoma, 470 U.S. 68, 75
(1985). Stated differently, if “the state court must rule, either explicitly or implicitly,
on the merits of the constitutional question” before applying the state’s procedural rule
to a federal constitutional question, then the rule is not independent of Federal law. Id.
To be considered “adequate” to support the state court’s judgment, the state
21
procedural rule must be both “‘firmly established and regularly followed.’” Lee v.
Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In
other words, the rule must be “clear [and] closely hewn to” by the state for a federal
court to consider it as “adequate.” James, 466 U.S. at 346 (alteration added). That does
not mean that the state’s procedural rule must be rigidly applied in every instance, or
that occasional failure to do so will render the rule “inadequate.” “To the contrary, a
[state’s] discretionary [procedural] rule can be ‘firmly established’ and ‘regularly
followed’ — even if the appropriate exercise of discretion may permit consideration
of a federal claim in some cases but not others.” Beard v. Kindler, 558 U.S. 52, 60-61
(2009) (alterations added). Rather, the “adequacy” requirement means only that the
procedural rule “must not be applied in an arbitrary or unprecedented fashion.” Judd,
250 F.3d at 1313 (emphasis added).
In summary, if the procedural rule is not firmly established, or if it is applied in
an arbitrary, unprecedented, or manifestly unfair fashion, it will not be considered
“adequate,” and the state court decision based upon such a rule can be reviewed by a
federal court. Card, 911 F.2d at 1517. Conversely, if the rule is deemed “adequate,”
the decision will not be reviewed by this court.
2.
Overcoming procedural default
There are basically three circumstances in which an otherwise valid state-law
22
ground will not bar a federal habeas court from considering a constitutional claim that
was procedurally defaulted in state court: i.e., (i) where the petitioner demonstrates that
he had good “cause” for not following the state procedural rule, and, that he was
actually “prejudiced” by the alleged constitutional violation; or (ii) where the state
procedural rule was not “firmly established and regularly followed”; or (iii) where
failure to consider the petitioner’s claims will result in a “fundamental miscarriage of
justice.” See Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J., concurring);
see also, e.g., Coleman, 501 U.S. at 749-50 (holding that a state procedural default
“will bar federal habeas review of the federal claim, unless the habeas petitioner can
show cause for the default and prejudice attributable thereto, or demonstrate that failure
to consider the federal claim will result in a fundamental miscarriage of justice”)
(citations and internal quotation marks omitted); Murray v. Carrier, 477 U.S. 478, 496
(1986) (“[W]here a constitutional violation has probably resulted in the conviction of
one who is actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default.”) (alteration added); Smith
v. Murray, 477 U.S. 527, 537 (1986) (same); Davis v. Terry, 465 F.3d 1249, 1252 n.4
(11th Cir. 2006) (“It would be considered a fundamental miscarriage of justice if ‘a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.’”) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995) (in turn quoting
23
Murray, 477 U.S. at 496)).
a.
The “cause and prejudice” standard
“A federal court may still address the merits of a procedurally defaulted claim
if the petitioner can show cause for the default and actual prejudice resulting from the
alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)
(citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added). This
so-called “cause and prejudice” standard is clearly framed in the conjunctive; therefore,
a petitioner must prove both parts.
i.
“Cause”
To show “cause,” a petitioner must prove that “some objective factor external
to the defense impeded counsel’s efforts” to raise the claim in the state courts. Carrier,
477 U.S. at 488; see also Amadeo v. Zant, 486 U.S. 214, 221-22 (1988).
Objective factors that constitute cause include “‘interference by officials’”
that makes compliance with the State’s procedural rule impracticable, and
“a showing that the factual or legal basis for a claim was not reasonably
available to counsel.” In addition, constitutionally “[i]neffective assistance
of counsel . . . [on direct review] is cause.” Attorney error short of
ineffective assistance of counsel [on direct review], however, does not
constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (citations omitted) (first alteration in
original, all other alterations added).
“Attorney error [on direct review] that constitutes ineffective assistance of
24
counsel” has long been accepted as “cause” to overcome a procedural default.
Coleman, 501 U.S. at 754 (alteration added). However, the constitutional
ineffectiveness of post-conviction counsel on collateral review generally will not
support a finding of cause and prejudice to overcome a procedural default, because
“[t]here is no right to counsel in state post-conviction proceedings.” Id. at 752
(alteration added) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v.
Giarratano, 492 U.S. 1 (1989)).
Even so, in two recent landmark cases, the Supreme Court extended its prior
decision in Coleman by deciding that, as a matter of equity, and, under specific, limited
circumstances, errors by counsel on post-conviction collateral review could establish
the necessary “cause” to overcome a procedurally defaulted claim. In the first such
case, Maples v. Thomas, — U.S. —, 132 S. Ct. 912 (2012), the Supreme Court found
that post-conviction counsel’s gross professional misconduct (e.g. abandonment of the
petitioner) severed the agency relationship between counsel and the petitioner and,
thus, established the necessary “cause” to overcome a procedural default. Id. at 922.
In the second case, Martinez v. Ryan, — U.S. —, 132 S. Ct. 1309 (2012), the
Supreme Court held that post-conviction counsel’s failure to raise an ineffective
assistance of trial counsel claim at an initial review collateral proceeding could serve
as the necessary “cause” to overcome the procedural default of that type of claim when
25
the state prohibits it from being raised during the direct review process. Id. at 1317.
ii.
“Prejudice”
In addition to proving the existence of “cause” for a procedural default, a habeas
petitioner must show that he was actually “prejudiced” by the alleged constitutional
violation. He must show “not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S.
152, 170 (1982) (emphasis added); see also McCoy v. Newsome, 953 F.2d 1252, 1261
(11th Cir. 1992) (per curiam). If the “cause” is of the type described in the Supreme
Court’s 2012 decision in Martinez v. Ryan, then the reviewing court should consider
whether
the
petitioner
can
demonstrate
“ that
the
underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Martinez, 132 S. Ct. at
1318-19 (citing for comparison Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing
standards for certificates of appealability to issue)).
b.
The “fundamental miscarriage of justice” standard
Because habeas is a creature of equity, the Supreme Court has recognized that,
where procedural default would result in a “fundamental miscarriage of justice,” a
federal court may consider a procedurally defaulted claim even without a showing of
26
“cause” for the default. See Schlup v. Delo, 513 U.S. at 319 (“habeas corpus is, at its
core, an equitable remedy”.) Balancing societal versus individual interests, the Supreme
Court has “[e]xplicitly t[ied] the miscarriage of justice exception to innocence[,] thus
accommodat[ing] both the systemic interests in finality, comity, and conservation of
judicial resources, and the overriding individual interest in doing justice in the
‘extraordinary case.’” Schlup, 513 U.S. at 322 (citing Carrier, 477 U.S. at
496)(alterations added).
The Supreme Court has recognized two alternative standards which fall under
the rubric of fundamental miscarriage of justice: the standard set out in Carrier and the
standard set out in Sawyer. Which standard applies depends on whether the claim being
assessed is that the petitioner is actually innocent of the crime of conviction (Carrier
“probably resulted” standard applies) or is some other claimed constitutional error
resulting in imposition of a death sentence (Sawyer “clear and convincing evidence”
standard applies).
In assessing a substantial claim of actual innocence of the crime of conviction,
the Supreme Court applies Carrier’s more lenient standard: a fundamental miscarriage
of justice is shown where the petitioner shows that the procedurally defaulted claim of
constitutional error now raised “has probably resulted in the conviction of one who is
actually innocent.” Carrier, 477 U.S. at 496 (emphasis added); See also Schlup, 513
27
U.S. at 324. (“We conclude that Carrier, rather than Sawyer, properly strikes the
balance between the societal interests and the individual interest in justice, when the
claimed injustice is that constitutional error has resulted in the conviction of one who
is actually innocent.”).
As to all other procedurally defaulted claims, the petitioner is subject to the more
stringent Sawyer standard. He must show “by clear and convincing evidence that[,] but
for a constitutional error, no reasonable juror would have found the petitioner eligible
for the death penalty.” Schlup, 513 U.S. at 323 & n.38 (quoting Sawyer v. Whitley, 505
U.S. 333, 336 (1992)) (emphasis in Schlup, alteration added); see also, e.g., Smith, 477
U.S. at 537-38.
C.
The Statutory Overlay: The Effect of “the Antiterrorism and Effective Death
Penalty Act of 1996” on Habeas Review
The writ of habeas corpus “has historically been regarded as an extraordinary
remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true
when federal courts are asked to engage in habeas review of a state court conviction
pursuant to 28 U.S.C. § 2254.
Direct review is the principal avenue for challenging a conviction. “When
the process of direct review . . . comes to an end, a presumption of finality
and legality attaches to the conviction and sentence. The role of federal
habeas proceedings, while important in assuring that constitutional rights
are observed, is secondary and limited. Federal courts are not forums in
which to relitigate state trials.”
28
Id. (emphasis and redaction added) (quoting Barefoot v. Estelle, 463 U.S. at 887).
“Those few who are ultimately successful [in obtaining federal habeas relief] are
persons whom society has grievously wronged and for whom belated liberation is little
enough compensation.” Fay v. Noia, 372 U.S. 391, 440-41 (1963) (alteration added).
“Accordingly, . . . an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634
(citations, quotation marks, and footnote omitted). That is due to the fact that, under the
federal system of governments created by the United States Constitution,
[t]he States possess primary authority for defining and enforcing the
criminal law. In criminal trials they also hold the initial responsibility for
vindicating constitutional rights. Federal intrusions into state criminal
trials frustrate both the States’ sovereign power to punish offenders and
their good-faith attempts to honor constitutional rights.
Engle v. Isaac, 456 U.S. 107, 128 (1982) (alteration added).10
These principles were reinforced by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which amended preexisting habeas law.11 Among
10
“The reason most frequently advanced in our cases for distinguishing between direct and collateral
review is the State’s interest in the finality of convictions that have survived direct review within the
state court system.” Brecht, 507 U.S. at 635 (citing Wright v. West, 505 U.S. 277, 293 (1992);
McCleskey, 499 U.S. at 491; and Wainwright, 433 U.S. at 90).
11
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) was signed into law by President
Clinton on April 24, 1996. See Pub. L. No. 104-132, 110 Stat. 1214 (1996). The present petition was
filed after that date. Accordingly, the habeas statutes as amended by AEDPA apply to the claims
asserted in this case. See id. § 107(c), 110 Stat. at 1226; McNair v. Campbell, 416 F.3d 1291, 1297
(11th Cir. 2005) (applying AEDPA to habeas petitions filed after Act’s effective date); Hightower
29
other things, several provisions of the AEDPA require federal courts to give greater
deference to state court determinations of federal constitutional claims than before.
1.
28 U.S.C. § 2254(e)(1)
Section 2254(e)(1) requires district courts to presume that a state court’s factual
determinations are correct, unless the habeas petitioner rebuts the presumption of
correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also,
e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that §
2254(e)(1) provides “a highly deferential standard of review for factual determinations
made by a state court”). Section 2254(e)(1) “modified a federal habeas court’s role in
reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and
to ensure that state-court convictions are given effect to the extent possible under law.”
Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362,
403-04 (2000)).
The deference that attends state court findings of fact pursuant to Section
2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus, a
presumption of correctness must be afforded to a state court’s factual findings, even
v. Schofield, 365 F.3d 1008, 1013 (11th Cir. 2004) (same). See also Martin v. Hadix, 527 U.S. 343,
356 (1999) (discussing retroactivity of AEDPA amendments to § 2254). Cf. Lindh v. Murphy, 521
U.S. 320, 327 (1997) (holding that AEDPA’s amendments do not apply to habeas petitions filed prior
to the Act’s effective date); Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir. 2001) (same);
Thompson v. Haley, 255 F.3d 1292, 1295 (11th Cir. 2001) (same).
30
when the habeas claim is being examined de novo. See Mansfield v. Secretary,
Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012) (acknowledging the
federal court’s obligation to accept a state court’s factual findings as correct, if
unrebutted by clear and convincing evidence, and proceeding to conduct a de novo
review of the habeas claim).
The presumption of correctness also applies to habeas claims that were
adjudicated on the merits by the state court and, therefore, are claims subject to the
standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2) discussed in the
following section.
2.
28 U.S.C. § 2254(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, 562 U.S. 86, 98 (2011). 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.
Further, the “backward-looking language” of the statute requires an examination
of the state court decision on the date it was made. Cullen v. Pinholster, — U.S. —,
131 S. Ct. 1388, 1398 (2011). That is, “[s]tate court decisions are measured against
[the Supreme] Court’s precedents as of ‘the time the state court renders its decision.’”
31
Id. at 1399 (alterations added) (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72
(2003)).
Finally, “review under §[§] 2254(d)(1) [and (d)(2)] is limited to the record that
was before the state court that adjudicated the claim on the merits.” Id. at 1398, 1400
n.7 (alterations added). Therefore, a federal habeas court conducting 2254(d) review
should not consider new evidence “in the first instance effectively de novo.” Id. at
1399.
A closer look at the separate provisions of 28 U.S.C. § 2254(d)(1) and (d)(2)
reveals that, when a state court has made a decision on a petitioner’s constitutional
claim, habeas relief cannot be granted, unless it is determined that the state court’s
adjudication of the claim either:
(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).12
12
Section 2254(d)(1)’s reference to “clearly established Federal law, as determined by the Supreme
Court of the United States” has been interpreted by the Supreme Court as referencing only “the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412 (O’Connor, J., majority opinion) (emphasis and
alteration added); see also, e.g., Carey v. Musladin, 549 U.S. 70, 74 (2006) (same); Osborne v.
32
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).13 When
considering a state court’s adjudication of a petitioner’s claim, therefore, the habeas
court must not conflate the two modes of analysis.
a.
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 materially
indistinguishable from a relevant Supreme Court precedent and arrives at
a result opposite to ours.
Williams, 529 U.S. at 405. See also, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005)
Terry, 466 F.3d 1298, 1305 (11th Cir. 2006) (same); Warren v. Kyler, 422 F.3d 132, 138 (3rd Cir.
2005) (“[W]e do not consider those holdings as they exist today, but rather as they existed as of the
time of the relevant state-court decision.”) (internal quotation marks and citation omitted) (alteration
added).
13
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 added).
33
(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
out above.14 Instead, the statutory language “simply implies that ‘the state court’s
decision must be substantially different from the relevant precedent of [the Supreme]
Court.’” Alderman, 468 F.3d at 791 (quoting Williams, 529 U.S. at 405) (alteration
added).
14
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).
34
b.
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. See also, e.g., Putman, 268 F.3d at 1240-41 (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. 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.
In other words, the question that should be asked 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]
35
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 that 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, 562 U.S. 86, 100-103
(2011) (same).15
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 in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 786-87. Stated another way,
15
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).
36
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) (alteration added). 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).
c.
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”
“[Title] 28 U.S.C. § 2254(d)(2) imposes a ‘daunting standard – one that will be
satisfied in relatively few cases.’” Cash v. Maxwell, — U.S. —, 132 S. Ct. 611, 612
(2012) (alteration added) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010).
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 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 ‘[r]easonable minds
37
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)) (alteration in original). Conversely,
when a state court’s adjudication of a habeas claim result[s] in a decision
that [i]s 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.
Adkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249 (11th Cir.
2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc)
(alteration in original) (quotation marks and citations omitted in original)).
d.
Evaluating state court factual determinations under 28 U.S.C. §§
2254(d)(2) and (e)(1)
As set out previously, 28 U.S.C. § 2254(d)(2) regulates federal court review of
state court findings of fact. That provision limits the availability of federal habeas relief
on any claims by a state prisoner that are grounded in a state court’s factual findings,
unless the state court’s findings were “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)(2).
Moreover, it must be remembered that 28 U.S.C. § 2254(e)(1) provides that
factual determinations made by a state court are “presumed to be correct,” and that the
38
habeas petitioner bears “the burden of rebutting the presumption of correctness by clear
and convincing evidence.” See 28 U.S.C. § 2254(e)(1); Ward v. Hall, 592 F.3d at 1155
(holding that the presumption of correctness attending a state court’s findings of fact
can be overcome only by clear and convincing evidence).
Nevertheless, there is Eleventh Circuit case authority observing that the manner
in which subsections 2254(d)(2) and(e)(1) relate to one another remains an open
question. See Cave v. Secretary for Department of Corrections, 638 F.3d 739, 744-45
(11th Cir. 2011) (“‘[N]o court has fully explored the interaction of § 2254(d)(2)’s
‘unreasonableness’ standard and § 2254(e)(1)’s ‘clear and convincing evidence’
standard.”) (quoting Gore v. Secretary for Department of Corrections, 492 F.3d 1273,
1294 n.51 (11th Cir. 2007)).
Even so, the Eleventh Circuit’s earlier opinion in Ward v. Hall clearly held that
federal habeas courts “must presume the state court’s factual findings to be correct
unless the petitioner rebuts that presumption by clear and convincing evidence.” Id. at
1177 (citing § 2254(e)(1); Parker v. Head, 244 F.3d 831, 835-36 (11th Cir. 2001)).
That same opinion also observed that “28 U.S.C. § 2254(e)(1) commands that for a
writ to issue because the state court made an ‘unreasonable determination of the facts,’
the petitioner must rebut ‘the presumption of correctness [of a state court’s factual
findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155 (alteration in
39
original).
D.
The Burden of Proof and Heightened Pleading Requirements for Habeas
Petitions
Habeas review “exists only to review errors of constitutional dimension.”
McFarland v. Scott, 512 U.S. 849, 856 (1994); see also 28 U.S.C. § 2254(a).16 Further,
“[w]hen the process of direct review . . . comes to an end, a presumption of finality and
legality attaches to the conviction and sentence.” Barefoot v. Estelle, 463 U.S. at 887
(alteration and redactions added). Two consequences flow from those fundamental
propositions.
First, the habeas petitioner bears the burden of overcoming the presumption of
“legality” that attaches to the state court conviction and sentence, and of establishing
a factual basis demonstrating that federal post-conviction relief should be granted. See,
e.g., 28 U.S.C. §§ 2254(d) and (e)(1);17 Hill v. Linahan, 697 F.2d 1032, 1036
16
28 U.S.C. § 2254(a) provides that the “Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” It follows that claims pertaining solely to
questions of state law fall outside the parameters of this court’s authority to provide relief under §
2254.
17
As discussed previously, Section 2254(d) provides that the state courts’ adjudication of a habeas
petitioner’s claims can be overturned only if the petitioner carries the burden of demonstrating that
a particular determination either (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,” or (2) that the ruling “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.” Further, § 2254(e)(1) provides that:
40
(11th Cir. 1983) (“The burden of proof in a habeas proceeding is always on the
petitioner.”) (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).
Second, the habeas petitioner must meet “heightened pleading requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994); Borden v Allen, 646 F.3d 785, 810
(11th Cir. 2011) (holding that Section 2254 requires “fact pleading,” and not merely
“notice pleading”). The mere assertion of a ground for relief, without concomitant
allegation of sufficient factual detail, does not satisfy either the petitioner’s burden of
proof under 28 U.S.C. § 2254(e)(1), or the requirements of Rule 2(c) of the Rules
Governing Section 2254 Cases in the United States District Courts, which requires a
state prisoner to “specify all the grounds for relief available to the petitioner,” and to
then “state the facts supporting each ground.” Rule 2(c)(1) and (2), Rules Governing
Section 2254 Cases in the United States District Courts.18 See also 28 U.S.C. § 2242
(stating that an application for writ of habeas corpus “shall allege the facts concerning
the applicant’s commitment or detention”).
In short, a habeas petitioner must include in his statement of each claim sufficient
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.
18
Accord Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States District
Courts.
41
supporting facts to justify a decision for the petitioner if the alleged facts are proven
true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (observing that a
habeas petition must “state facts that point to a ‘real possibility of constitutional
error’”) (quoting Advisory Committee Notes to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts). Cf. Diaz v. United States, 930 F.2d
832, 835 (11th Cir. 1991) (holding in a case premised upon 28 U.S.C. § 2255 that,
despite the liberal construction due a pro se petitioner’s allegations, dismissal was
appropriate because the movant did not allege “facts that, if proven, would entitle him
to relief”).19
In addition, “[c]itation of the controlling constitutional, statutory, or other bases
for relief for each claim also should be stated.” 1 Randy Hertz & James S. Liebman,
Federal Habeas Corpus Practice and Procedure § 11.6, at 654 (5th ed. 2005). As
another district court has held:
It is not the duty of federal courts to try to second guess the meanings of
statements and intentions of petitioners. Rather the duty is upon the
individual who asserts a denial of his constitutional rights to come forth
with a statement of sufficient clarity and sufficient supporting facts to
enable a court to understand his argument and to render a decision on the
19
Cf. Hill v. Lockart, 474 U.S. 52, 60 (1986) (“Petitioner did not allege in his habeas petition that,
had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty
and insisted on going to trial. He alleged no special circumstances that might support the conclusion
that he placed particular emphasis on his parole eligibility in deciding whether or not to plead
guilty.”).
42
matter.
Nail v. Slayton, 353 F. Supp. 1013, 1019 (W.D. Va. 1972).
E.
An Introduction to Ineffective Assistance of Counsel Claims
An introduction to ineffective assistance of counsel claims is included here
because of the relationship between such claims – which are governed by a highly
deferential standard of constitutional law – and 28 U.S.C. § 2254(d), which is itself an
extremely deferential standard of habeas review. Ineffective assistance of counsel
claims are specifically limited to the performance of attorneys who represented a state
prisoner at trial, or on direct appeal from the conviction. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.”). See also Coleman v. Thompson, 501 U.S. at 752 (“There is no
constitutional right to an attorney in state post-conviction proceedings. Consequently,
a petitioner cannot claim constitutionally ineffective assistance of counsel in such
proceedings.”) (citations omitted).
The Supreme Court’s “benchmark” standard for judging any claim that a trial or
appellate attorney provided representational assistance to a state prisoner that was so
professionally incompetent as to create issues of federal constitutional proportions is
the question of “whether counsel’s conduct so undermined the proper functioning of
43
the adversarial process that the trial cannot be relied upon as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). If an objective answer to
that question is “yes,” then counsel was constitutionally ineffective. Even so, Strickland
requires that the issue be approached in two steps.
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result
unreliable.
Id. at 687 (emphasis added); see also, e.g., Williams, 529 U.S. at 390 (same); Grayson
v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001) (same).
Both parts of the Strickland standard must be satisfied: that is, a habeas
petitioner bears the burden of proving, by “a preponderance of competent evidence,”
that the performance of his trial or appellate attorney was deficient; and that such
deficient performance prejudiced his defense. Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000) (en banc). Thus, a federal court is not required to address
both parts of the Strickland standard when the habeas petitioner makes an insufficient
44
showing on one of the prongs. See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th
Cir. 2000) (“Because both parts of the test must be satisfied in order to show a
violation of the Sixth Amendment, the court need not address the performance prong
if the defendant cannot meet the prejudice prong, or vice versa.”) (citation to Strickland
omitted).
1.
The performance prong
“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler,
218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a defendant
must prove that counsel made errors so serious that he or she was not functioning as
the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The
standard for gauging attorney performance is “reasonableness under prevailing
professional norms.” Id. at 688; see also, e.g., Williams, 529 U.S. at 390-91 (same);
Darden v. Wainwright, 477 U.S. 168, 184 (1986) (same); Chandler, 218 F.3d at 1313
(same). “The test of reasonableness is not whether counsel could have done something
more or different,” but whether counsel’s performance “fell within the broad range of
reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d
at 1313). Furthermore, courts must “recognize that ‘omissions are inevitable, but, the
45
issue is not what is possible or ‘what is prudent or appropriate, but only what is
constitutionally compelled.’” Id. (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
The Sixth Amendment does not guarantee a defendant the very best counsel or the most
skilled attorney, but only an attorney who performed reasonably well within the broad
range of professional norms. “The test has nothing to do with what the best lawyers
would have done. Nor is the test even what most good lawyers would have done. We
ask only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d 1218,
1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective of
the attorney at the time of the alleged error, and in light of all the circumstances. See,
e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (giving lawyers “the
benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v. Singletary, 161
F.3d 1273, 1285-86 (11th Cir. 1998) (noting that Strickland performance review is a
“deferential review of all of the circumstances from the perspective of counsel at the
time of the alleged errors”).
Under this standard, there are no “absolute rules” dictating what
reasonable performance is or what line of defense must be asserted.
[Chandler, 218 F.3d] at 1317. Indeed, as we have recognized, “[a]bsolute
rules would interfere with counsel’s independence — which is also
constitutionally protected — and would restrict the wide latitude counsel
46
have in making tactical decisions.” Putman v. Head, 268 F.3d 1223, 1244
(11th Cir. 2001).
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (first alteration added,
second alteration in original). Judicial scrutiny of counsel’s performance must be
“highly deferential,” because representation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another. See Strickland,
466 U.S. at 697. Indeed, reviewing courts are instructed that they “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable. A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
Strickland, 466 U.S. at 689 (emphasis added) (citations and internal quotation marks
omitted); see also, e.g., Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (“When
47
reviewing whether an attorney is ineffective, courts should always presume strongly
that counsel’s performance was reasonable and adequate.”) (internal quotation marks
omitted).
“Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d at
1209 (quoting Chandler, 218 F.3d at 1315) (emphasis added). “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can
be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in
the circumstances, would have done so.” Rogers, 13 F.3d at 386 (emphasis added).
2.
The prejudice prong
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). See also, e.g., Gilreath v. Head, 234 F.3d 547,
551 (11th Cir. 2000) (holding that a habeas petitioner “must affirmatively prove
prejudice, because ‘[a]ttorney errors come in an infinite variety and are as likely to be
utterly harmless in a particular case as they are to be prejudicial.’”) (quoting Strickland,
466 U.S. at 693)) (alteration in original). “It is not enough for the [habeas petitioner]
to show that the errors had some conceivable effect on the outcome of the proceeding.”
48
Strickland, 466 U.S. at 693 (alteration added); see also Harrington, 562 U.S. at 111112 (citing Strickland, 466 at 693) (“The likelihood of a different result must be
substantial, not just conceivable.”)) (emphasis added).
Instead, to prove prejudice, the habeas petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see
also Williams, 529 U.S. at 391 (same). When that standard is applied in the context of
the death sentence itself, “‘the question is whether there is a reasonable probability
that, absent the errors, the sentencer [i.e., in Alabama, the trial court judge] . . . would
have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695)
(alteration added).
That is a high standard, and in order to satisfy it a petitioner must present
competent evidence proving “that trial counsel’s deficient performance deprived him
of ‘a trial whose result is reliable.’” Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir.
2001) (quoting Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice
requires proof of unprofessional errors so egregious that the trial was rendered unfair
and the verdict rendered suspect.” Johnson, 256 F.3d at 1177 (quoting Eddmonds v.
49
Peters, 93 F.3d 1307, 1313 (7th Cir. 1996) (in turn quoting Kimmelman v. Morrison,
477 U.S. 365, 374 (1986))) (internal quotation marks omitted) (alteration added).
3.
Deference accorded state court findings of historical fact, and decisions
on the merits, when evaluating ineffective assistance of counsel claims
State court findings of historical fact made in the course of evaluating a claim of
ineffective assistance of counsel are subject to a presumption of correctness under 28
U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292, 1297
(11th Cir. 2001). To overcome a state-court finding of fact, the petitioner bears a
burden of proving contrary facts by “clear and convincing evidence.”
Additionally, under the AEDPA, a federal habeas court may grant relief on a
claim of ineffective assistance of counsel only if the state-court determination involved
an “unreasonable application” of the Strickland standard to the facts of the case.
Strickland itself, of course, also requires an assessment of whether counsel’s conduct
was professionally unreasonable. These two assessments cannot be conflated into one.
See Harrington, 562 U.S. at 101-02. Thus, habeas relief on a claim of ineffective
assistance of counsel can be granted with respect to a claim actually decided by the
state courts only if the habeas court determines that it was “objectively unreasonable”
for the state courts to find that counsel’s conduct was not “professionally
unreasonable.” The Harrington Court explained:
50
“Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 559 U.S. [356], [371-372], 130 S. Ct. 1473, 1485, 176 L.
Ed. 2d 284 (2010). An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must be applied with scrupulous care,
lest “intrusive post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690, 104 S. Ct. 2052. Even under de novo review, the
standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the
client, with opposing counsel, and with the judge. It is “all too tempting”
to “second-guess counsel’s assistance after conviction or adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v. Cone, 535 U.S.
685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993).
The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466
U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” Id., at
689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.
Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in tandem,
review is “doubly” so, Knowles [v. Mirzayance], 556 U.S., at [125], 129
S. Ct. at 1420 [(2009)]. The Strickland standard is a general one, so the
range of reasonable applications is substantial. 556 U.S., at [123], 129 S.
Ct. at 1420. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.
51
Harrington, 562 U.S. at 105 (alterations added); see also Premo v. Moore, 562 U.S.
115, 121-23 (2011).
V. JENKINS’S CLAIMS
A.
Mr. Jenkins Was Deprived of His Constitutional Right to an “Impartial,
Indifferent” Jury when a Juror Repeatedly Failed To Answer Critical
Questions during Voir Dire
Jenkins alleges that his right to a fair and impartial jury was violated by Juror
Leona Voss’s failure to disclose that twenty years earlier, her nephew and his wife had
been “brutally murdered, execution-style, in the ‘worst case’ in St. Clair County’s
history.” (Doc. 36 at 4). He asserts that:
During voir dire at Mr. Jenkins’s trial, defense counsel asked each juror
whether they or any “close relatives” had been crime victims. TR. 285.
Counsel emphasized that the question referred to “any type of crime, from
serious assaults on down to purse snatching,” TR. 286.20 Based on
answers to these questions and follow-up responses, defense counsel
removed jurors who were victims or had friends or relatives who were
victims.21
20
Defense counsel Downey asked Ms. Voss’s panel:
Does anyone know of any other of your close relatives, or a very good friend
who has ever be[en] the victim of crime, any type of crime, from serious assaults on
down to purse snatching?
(R. Vol. 2 at 286) (alteration added).
21
Jenkins does not identify which jurors were removed based upon their answers to this question.
However, a review of the record reveals that, of the eleven named prospective jurors who indicated
they or their friends or family had been crime victims, four were removed by the defense, four were
removed by the state, and three sat on the jury.
52
Juror Voss was asked several questions, including inquiries about
her prior employment in the textile industry, involvement in civic and
social clubs, personal hobbies, and her deceased husband’s relatives. In
light of her responses to the various inquiries, Ms. Voss plainly had no
difficulty hearing questions.
Counsel also asked Ms. Voss and the other members of her panel
if they, their relatives or friends had ever been victims of crime. Several
jurors responded and were asked follow-up questions. For instance, one
juror stated that her husband was hit by a car before they met, a second
said her boss’s restaurant had been burglarized, and another said her
brother-in-law’s car was “stripped” near the interstate. During a longer
colloquy, a fourth juror discussed being a burglary victim. R1 at 285-89.
Trial counsel asked additional follow-up questions regarding the
circumstances of the crimes, including the jurors’ relationships to the
victims and whether the experience would impact their ability to serve.22
22
Only three prospective jurors in Ms. Voss’s panel indicated that they or their friends or relatives
had been the victim of a crime:
[Defense Counsel]: Has anyone here in this panel been the victim of a crime. I’m
talking about something that you consider serious, whether it’s generally thought of
as a serious or not, I mean, to one person somebody stealing your hubcaps is just as
bad as burglarizing your house. What I’m trying to get at is there anyone on this panel
who has ever been the victim of a crime that you considered a serious criminal offense
against you: house burglary, purse snatching, auto theft, anything like that? Yes, sir.
Prospective Juror Richard Spiker: I have been broken into twice about ten years ago.
[Defense Counsel]: Your residence?
Prospective Juror Richard Spiker: Yes, sir.
[Defense Counsel]: What did they take, something important to you?
Prospective Juror Richard Spiker: My father’s gun collection, stereo, things like that.
[Defense Counsel]: You were living with your family?
Prospective Juror Richard Spiker: Yes.
53
[Defense Counsel]: Do you think that the fact that your family was victimized by a
criminal act of burglary and theft, would that have any bearing on your ability, Mr.
Spiker to be completely fair in trying the case of this defendant Mark Jenkins?
Prospective Juror Richard Spiker: No.
[Defense Counsel]: Does anyone know of any other of your close relatives, or a very
good friend who has ever be[en] the victim of crime, any type of crime, from serious
assaults on down to purse snatching?
Prospective Juror Helen Staples: Well, my husband was, but I didn’t know him when
it happened to him.
[Defense Counsel]: I don’t mean to put words in your mouth, really, but it sounds like
that wouldn’t have any bearing on your ability to be impartial now?
Prospective Juror Helen Staples: No, it wouldn’t. He was hit by a drunk 22 years ago.
I didn’t know him then. I don’t [sic] any problem with it.
[Defense Counsel]: Anyone else?
Prospective Juror Karen Whitten: My boss.
[Defense Counsel]: Who is your boss?
Prospective Juror Karen Whitten: Charles Bearden.
[Defense Counsel]: Tell me what you are referring to?
Prospective Juror Karen Whitten: Well, he was in a bunch of trouble when and [sic]
I worked for him.
[Defense Counsel]: I know about that. I’m talking about the victim of a crime, that
is somebody did a crime to you or to Charlie, for example, burglarized Charlie’s
Catfish –
[The Prosecutor]: We have a case pending right now where Charlie has made an
arrest where a man burglarized his restaurant.
[Defense Counsel]: Were you working there when that happened?
Prospective Juror Karen Whitten: No.
54
[Defense Counsel]: Do you think that that fact would have any bearing on your being
able to be completely fair and impartial?
Prospective Juror Karen Whitten: No.
[Defense Counsel]: Has anyone here ever been a witness in a criminal case, testified
before a court before?
Prospective Juror Karen Whitten: Me. It was several – about six or seven years ago.
My brother-in-law’s car got stripped on the interstate and we had to go in a lineup to
testify – to pick the man that did it.
[Defense Counsel]: Did you go into court with the case?
Prospective Juror Karen Whitten: I went twice.
[Defense Counsel]: Did they have a trial?
[Defense Counsel]: About like this. Didn’t have no jury or nothing.
[Defense Counsel]: Did you testify?
Prospective Juror Karen Whitten: We went in a room like this. We didn’t have to go
in front of the judge. We had to talk to the lawyers and stuff.
...
[Defense Counsel]: I believe you said you helped pick somebody out of a lineup?
Prospective Juror Karen Whitten: Yes.
[Defense Counsel]: Was it a live lineup, or was it pictures?
Prospective Juror Karen Whitten: About from here to there.
[Defense Counsel]: Live people?
Prospective Juror Karen Whitten: Yes.
(R. Vol. 2 at 285-89). Both Richard Spiker and Helen Staples served on the jury. Karen Whitten was
removed by the state. (R. Vol. 3 at 445-50).
55
In response to the numerous questions about victimization
presented to her and the other jurors, Ms. Voss said nothing. She did not
raise her hand, answer audibly, or take any action to apprise counsel and
the court that two of her closest relatives had been brutally murdered.
(Doc. 36 at 4-5) (footnote omitted).
Jenkins maintains that during postconviction investigation, he discovered for the
first time that Ms. Voss’s nephew and his wife had been murdered. (Id. at 5). He points
out that at the evidentiary hearing on his Rule 32 petition, “Ms. Voss testified about her
family members who had been murdered, TR1,23 and Mr. Jenkins’s trial
23
At the hearing, Ms. Voss testified regarding her jury service, her sister Pauline, and Pauline’s son
J.T.:
[Defense Counsel]: Was he murdered in March of 1971?
[Ms. Voss]: Yeah, I guess. It has been a long time. I’m not sure.
[Defense Counsel]: Are you close to your sister, Pauline?
[Ms. Voss]: Yes, I’m close to her. She and one more [sister] is all I have.
[Defense Counsel]: Does she live close to you?
[Ms. Voss]: About three miles, I guess.
[Defense Counsel]: Do you have an opportunity to see her fairly often?
[Ms. Voss]: I see her three times a week. She is old and I help take care of her.
[Defense Counsel]: At the time her son was murdered, did you have a lot of contact
with her?
[Ms. Voss]: No, because I worked then. We didn’t see as much of each other as we
do now.
56
counsel testified that he ‘absolutely’ would have struck this juror from the panel had
the juror disclosed this information. TR1 at 289.”24
[Defense Counsel]: You were still close?
[Ms. Voss]: Yes, of course.
...
[The State]: Did you want to serve on a capital murder case?
[Ms. Voss]: No, ma’am, I certainly did not.
[The State]: When asked by the attorney during the voir dire process of the trial, you
didn’t intentionally withhold any information from them, did you?
[Ms. Voss]: No, ma’am.
[The State]: So if you were asked a question of whether or not you had a family
member that was a victim of a crime, had you thought of it, you would have answered
that in the affirmative?
[Ms. Voss]: That was the furthest thing from my mind. Judge Holladay was here then.
He was dismissing the ones that wanted to be excused. If you had a good excuse, you
would be excused. If that was in my mind, I would have been in that line.
[The State]: You were not trying to get on this jury?
[Ms. Voss]: No, ma’am.
[The State]: And you were not trying to withhold information from any of the parties
in this case?
[Ms. Voss]: No, ma’am.
(Rule 32 R., Vol. 19, Tab 48 at 9-11).
24
Jenkins’s trial counsel, Doug Scofield, testified that:
[Defense Counsel]: If a member from the jury venire had stated during voir dire that
her nephew had been murdered, would you have exercised a peremptory strike to
57
Jenkins unsuccessfully raised this claim in his original Rule 32 petition, then
again in a successive Rule 32 petition. The Alabama Court of Criminal Appeals set out
the procedural history of this claim in its opinion affirming the Rule 32 court’s
dismissal of Jenkins’s successive Rule 32 petition:
On May 26, 1995, Jenkins, through counsel, filed his first Rule 32
petition in the St. Clair Circuit Court in which he raised numerous claims
for relief. On November 26, 1996, Jenkins filed an amendment to his Rule
32 petition in which he alleged, among other things, that he was entitled
remove her?
[Mr. Scofield]: Absolutely.
...
[Defense Counsel]: During the jury selection process, was it important to you to
remove jurors who had been victims of crimes?
[Mr. Scofield]: Yes, it was.
[Defense Counsel]: Would it have been especially important to remove people who
had been victims of violent crimes?
[Mr. Scofield]: Yes.
[Defense Counsel]: Or who had relatives who had been victims of violent crimes?
[Mr. Scofield]: Absolutely.
[Defense Counsel]: As an attorney, why is that important to you?
[Mr. Scofield]: It has been my experience that people who have family members who
are victims of violent crimes are biased toward the State. It would have been a very
important factor, and one of the basic questions I would have inquired about in regard
to the venire.
(Rule 32 R. Vol. 21 at 289-90).
58
to a new trial because Juror L.V. failed to disclose during voir dire that
her nephew and his wife had been murdered. (1st R. 32 C. at 257–59.) On
December 10, 1996, the circuit court conducted the first day of an
evidentiary hearing on Jenkins’s amended Rule 32 petition and postponed
the remainder of the hearing until a later date. On January 18, 1997, after
the first day of the evidentiary hearing but before the two final days of the
hearing, the State filed a response to Jenkins’s amended Rule 32 petition
in which it asserted, among other things, that Jenkins’s juror-misconduct
claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5),
Ala. R.Crim. P., because it could have been, but was not, raised at trial
or on direct appeal. Thereafter, on January 20 and 21, 1997, the circuit
court conducted the remainder of the evidentiary hearing, during which
Jenkins presented the testimony of one of his two trial attorneys.
On December 31, 1997, the circuit court issued a detailed order
denying relief on the claims contained in Jenkins’s Rule 32 petition. (1st
R. 32 C. at 267–346.) In its order, the circuit court determined, in relevant
part, that Jenkins’s claim contending that Juror L.V.’s failure to disclose
during voir dire that her nephew and his wife had been murdered was
procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim.
P., because this claim could have been, but was not, raised at trial or on
direct appeal. (1st R. 32 C. at 275, 282.)
On February 27, 2004, this Court affirmed the circuit court’s denial
of Jenkins’s Rule 32 petition. See Jenkins v. State, 972 So.2d 111
(Ala.Crim.App. 2004). Specifically, this Court held that Jenkins’s
juror-misconduct claim was barred pursuant to Rule 32.2(c), Ala. R.Crim.
P., because it was raised in an untimely amendment to the original Rule
32 petition and did not relate back to any claim raised in the original
petition. Id. at 120–21. On April 8, 2005, the Alabama Supreme Court
reversed this Court’s holding that Jenkins’s juror-misconduct claim was
time-barred and remanded the cause to this Court for further proceedings.
See Ex parte Jenkins, 972 So.2d 159 (Ala. 2005).
On November 23, 2005, this Court again affirmed the circuit
court’s order denying relief on Jenkins’s claim relating to juror
misconduct. See Jenkins v. State, 972 So.2d 165 (Ala.Crim.App. 2005).
59
In affirming the circuit court’s decision, this Court noted that Jenkins
failed to present any evidence during the evidentiary hearing indicating
that his juror-misconduct claim was not known and could not have been
discovered in time to raise it at trial or on appeal. Id. at 167–68.
Specifically, this Court explained:
Jenkins submitted no evidence indicating why this claim was
raised in the Rule 32 petition and not in earlier proceedings.
Jenkins’s attorney offered no explanation at the Rule 32
hearing. The only reference in the record concerning the
lateness of raising this claim is the following statement
contained in a response filed by Jenkins: “After filing his
petition for postconviction relief but prior to the evidentiary
hearing in this case, Mr. Jenkins obtained new evidence
suggesting that [L.V.] had a close relative who had been
murdered.” (Supplemental record, vol. III, p. 402.)
Id. at 167. After noting that Jenkins failed to present any evidence
indicating whether trial counsel knew of and thus could have raised the
juror-misconduct claim earlier, this Court, applying the Alabama Supreme
Court’s holding in Ex parte Pierce, 851 So.2d 606 (Ala. 2000), held that
the claim was procedurally barred because it could have been, but was
not, raised at trial or on appeal. Jenkins v. State, 972 So.2d at 168. See
also Ex parte Pierce, 851 So.2d at 614 (explaining that “Rule[s]
32.2(a)(3) and (5) would preclude [a juror-misconduct] claim if it could
have been raised at trial or on appeal . . . [and to overcome the procedural
bars contained in Rule 32.2(a), Ala. R.Crim. P., the petitioner must] show
that his claim could not have been raised at trial or on direct appeal”). On
May 18, 2007, the Alabama Supreme Court entered an order denying
Jenkins’s petition for a writ of certiorari.
On May 15, 2008, Jenkins filed a 28 U.S.C. § 2254 petition for
writ of habeas corpus in the United States District Court for the Northern
District of Alabama. After Jenkins filed his federal habeas corpus petition,
the Alabama Supreme Court issued its decision in Ex parte Burgess, 21
So.3d 746 (Ala. 2008). In Burgess, the Alabama Supreme Court reviewed
this Court’s affirmance of the circuit court’s summary dismissal of
60
Burgess’s Rule 32 petition in which he raised a juror-misconduct claim.
Id. at 751. Specifically, the Alabama Supreme Court reviewed whether
this Court had properly held that Burgess’s juror-misconduct claim was
procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim.
P., because it could have been, but was not, raised at trial or on appeal.
Id. See Rule 32.2(a)(3) and (a)(5) (“A petitioner will not be given relief
under [Rule 32] based upon any ground: . . . 3) [w]hich could have been
but was not raised at trial, unless the ground for relief arises under Rule
32.1(b); or . . . 5) [w]hich could have been but was not raised on appeal,
unless the ground for relief arises under Rule 32.1(b).”).
In Ex parte Burgess, the Alabama Supreme Court applied this
Court’s decision in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.
1992), and its own decision in Ex parte Pierce, 851 So.2d 606 (Ala.
2000), and reaffirmed the principle established by those cases that a Rule
32 petitioner raising [a] juror-misconduct claim relating to a jurors failure
to disclose information during voir dire may overcome the procedural bars
contained in Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., if that petitioner
“establishe[s] that the information was not known, and could not
reasonably have been discovered, at trial or in time to raise the issue in a
motion for new trial or on appeal.” Ex parte Burgess, 21 So.3d at 751
(quoting Ex parte Pierce, 851 So.2d at 616 (emphasis added)). The
Alabama Supreme Court noted that Burgess had alleged in his Rule 32
petition that the juror-misconduct claim was not discovered until it was
too late to raise the claim at trial or on appeal. Id. The Court further noted
that it was unreasonable to require trial or appellate counsel to blindly
investigate possible juror-misconduct claims and that Burgess had alleged
in his petition that he had no reason to suspect any juror misconduct. Id.
at 754–55. Because Burgess had alleged facts indicating that his counsel
was unaware of the juror-misconduct claim until it was too late to raise
the claim at trial or on appeal and had alleged facts indicating that
“nothing occurred during the trial or appears in the record that could have
alerted him or his counsel to the [alleged juror misconduct],” the Alabama
Supreme Court held that this Court erroneously determined, at the
pleading stage, that Burgess’s juror-misconduct claim was procedurally
barred pursuant to Rule 32.2(a)(3) and (a)(5). Id. at 751–55. Therefore,
the Alabama Supreme Court reversed the summary dismissal of Burgess’s
61
Rule 32 petition. Id. at 755.
On October 2, 2008, Jenkins moved the federal district court to
stay his habeas proceedings to allow him to file another Rule 32 petition
reasserting his juror-misconduct claim. Specifically, Jenkins sought a stay
in federal court to allow him to pursue his juror-misconduct claim
pursuant to the Alabama Supreme Court’s decision in Ex parte Burgess,
21 So.3d 746 (Ala. 2008). On November 12, 2008, the federal district
court granted Jenkins’s motion to stay his habeas proceedings.
On October 1, 2008, Jenkins filed a second Rule 32 petition in
which he re-alleged that Juror L.V.’s failure to disclose during voir dire
that her nephew and his wife had been murdered 20 years before
Jenkins’s trial violated his right to a fair trial. In his Rule 32 petition,
Jenkins “incorporate[d] . . . the record of the [previous] evidentiary
hearing conducted” on his juror-misconduct claim. (2d R. 32 C. at 6.) On
October 31, 2008, the State filed an answer and motion to dismiss in
which it asserted that Jenkins’s petition was procedurally barred pursuant
to Rules 32.2(b) and 32.2(c), Ala. R.Crim. P., and argued, based on the
previous Rule 32 hearing, that Jenkins’s juror-misconduct claim was
without merit. The State further asserted that because Jenkins’s claim was
procedurally barred and without merit, it should be dismissed pursuant to
Rule 32.7(d), Ala. R.Crim. P. On November 25, 2008, the circuit court
issued a detailed order dismissing Jenkins’s petition as procedurally
barred and denying relief on the merits.
Jenkins v. State, 105 So. 2d 1234, 1236-39 (Ala. Crim. App. 2011) (footnotes omitted).
The Rule 32 court concluded:
Petitioner Mark Allen Jenkins is not entitled to relief on his juror
misconduct claim – the sole claim that he raises in his second Rule 32
petition – because his claim is barred from this Court’s review by the
statute of limitations procedural bar and is not, therefore, properly before
this Court. Assuming, however, that Jenkins’s juror misconduct claim is
properly before this Court – which it is not – this Court finds that it is
meritless. As such, Jenkins’s juror misconduct claim is denied, under Rule
62
32.7(d) of the Alabama Rules of Criminal Procedure.
(Second Rule 32 C.R. Vol. 9, Tab 18 at 23-24).
On appeal from the denial of his second Rule 32 petition, Jenkins argued that
the trial court erred in determining that his petition was time barred pursuant to Rule
32.2(c). The Alabama Court of Criminal Appeals summarized his argument as follows:
First, Jenkins argues that the time limitation contained in Rule 32.2(c),
Ala. R.Crim. P., does not apply to a successive petition filed pursuant to
Rule 32.2(b)(2), Ala. R.Crim. P., based on a “new ground” for relief or
based on a new rule of law. Jenkins then asserts that the Alabama
Supreme Court “changed the law in Alabama with respect to when juror
misconduct claims may be raised” when it decided Ex parte Burgess, 21
So.3d 746 (Ala. 2008). (Jenkins’s brief, at 34.) According to Jenkins,
because he based his juror-misconduct claim on the “new ground” for
Rule 32 relief that the Supreme Court established in Ex parte Burgess and
because he filed his second Rule 32 petition within six months of the
Supreme Court’s release of its opinion in Ex parte Burgess, the time
limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not bar relief.
Alternatively, Jenkins argues that even if the time limitation contained in
Rule 32.2(c), Ala. R.Crim. P., does apply, he was entitled to equitable
tolling because his juror-misconduct claim was based on the “new law”
established in Ex parte Burgess. Again, Jenkins asserts that in Ex parte
Burgess, the Alabama Supreme Court created a new law governing when
juror-misconduct claims may be asserted and that this new law was not
created until after the time limitation on his Rule 32 petition had expired;
therefore, he is entitled to equitable tolling.
Jenkins, 105 So. 2d at 1247.
On August 26, 2011, the Alabama Court of Criminal Appeals affirmed the Rule
32 court’s holding that the petition was barred by the statute of limitations:
63
Each of Jenkins’s arguments regarding why his petition is not
barred by the time limitation contained in Rule 32.2(c), Ala. R.Crim. P.,
is based on the premise that the Alabama Supreme Court established a
“new law” or a “new ground” for Rule 32 relief in Ex parte Burgess.
Contrary to Jenkins’s assertions, the Alabama Supreme Court did not
establish a new law in Ex parte Burgess; instead, it held that this Court
had misapplied existing law. In Ex parte Burgess, the Alabama Supreme
Court granted certiorari review “to determine whether the decision [of this
Court, holding that Burgess’s juror-misconduct claim was procedurally
barred pursuant to Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P.,]
conflict[ed] with Ex parte Pierce, 851 So.2d 606 (Ala. 2000), Ex parte
Dobyne, 805 So.2d 763 (Ala. 2001), and DeBruce v. State, 890 So.2d
1068 (Ala.Crim.App. 2003).” Ex parte Burgess, 21 So.3d at 750. In Ex
parte Pierce, the Alabama Supreme Court established that a
juror-misconduct claim could be raised as a constitutional claim pursuant
to Rule 32.1(a), Ala. R.Crim. P., and would not be procedurally barred
pursuant to Rule 32.2(a)(3) and (a)(5), if the petitioner proved by a
preponderance of the evidence “that the information was not known, and
could not reasonably have been discovered, at trial or in time to raise the
issue in a motion for new trial or on appeal.” 851 So.2d at 616-17. The
Supreme Court’s holding in Pierce was reaffirmed in Ex parte Dobyne,
805 So.2d 763, 768 (Ala. 2001), and DeBruce v. State, 890 So.2d 1068
(Ala.Crim.App. 2003).
In Ex parte Burgess, the Alabama Supreme Court reviewed this
Court’s affirmance of the summary dismissal of Burgess’s Rule 32
petition in which Burgess alleged that jurors had failed to disclose
information during voir dire. Although Burgess had alleged that the
juror-misconduct claim was not known to him and “that he could not have
reasonably discovered the alleged juror misconduct in time to raise the
claims in a motion or a new trial or on appeal,” this Court held that his
claims were procedurally barred because they could have been, but were
not, raised at trial and on direct appeal. Ex parte Burgess, 21 So.3d at 754
(emphasis in original). The Alabama Supreme Court reversed this Court’s
decision, holding that this Court had erroneously applied the standard
established in Ex parte Pierce, 851 So.2d 606, and Ex parte Dobyne, 805
So.2d 763, regarding what a Rule 32 petitioner must establish to
64
overcome the procedural bars contained in Rule 32.2(a)(3) and (a)(5),
Ala. R.Crim. P. Specifically, the Alabama Supreme Court, relying on Ex
parte Pierce, 851 So.2d 606, held that a Rule 32 petitioner can overcome
the procedural bars contained in Rule 32.2(a)(3) and (a)(5), Ala. R.Crim.
P., if that petitioner shows that he was unaware of and “that he could not
have reasonably discovered the alleged juror misconduct in time to raise
the claims in a motion or a new trial or on appeal.” FN.10. Ex parte
Burgess, 21 So.3d at 754. See also Ex parte Pierce, 851 So.2d at 616
(“Pierce’s [juror-misconduct] claim was cognizable as long as he
established that the information was not known, and could not reasonably
have been discovered, at trial or in time to raise the issue in a motion for
new trial or on appeal.”). Accordingly, the Supreme Court did not, as
Jenkins argues, establish a new rule of law or a new ground for Rule 32
relief when it decided Ex parte Burgess. FN.11. Instead, it determined
that this Court had erroneously applied the standard established in Ex
parte Pierce, 851 So.2d at 616.
FN.10. This Court notes that Jenkins, during his first Rule
32 proceeding, failed to prove by a preponderance of the
evidence “that the information [relating to his
juror-misconduct claim] was not known, and could not
reasonably have been discovered, at trial or in time to raise
the issue in a motion for new trial or on appeal,” Ex parte
Pierce, 851 So.2d at 616–17, because Jenkins failed to elicit
any testimony from trial counsel indicating that counsel was
unaware of the claim. Because Jenkins failed to meet his
burden to establish that the claim was unknown, this Court
correctly applied Ex parte Pierce, 851 So.2d at 616–17, and
held that the claim was procedurally barred because it could
have been, but was not, raised at trial or on direct appeal.
Jenkins v. State, 972 So.2d at 168.
FN.11. Jenkins cites King v. State, 689 So.2d 931
(Ala.Crim.App. 1997), Rice v. State, 682 So.2d 485
(Ala.Crim.App. 1996), and Mitchell v. State, 547 So.2d
1194 (Ala.Crim.App. 1989), in support of his proposition
that Rule 32 claims based on newly decided cases are not
65
subject to the time limitation contained in Rule 32.2(c), Ala.
R.Crim. P. Unlike Jenkins’s nonjurisdictional claim, the
petitioners in each of these cases raised jurisdictional claims
that, by their nature, are not subject to the time limitation
contained in Rule 32.2(c), Ala. R.Crim. P. Therefore, these
cases do not support his argument.
Because the Alabama Supreme Court did not establish a new law
or a new ground for Rule 32 relief in Ex parte Burgess, Jenkins’s
assertion that the release of that case exempted his juror-misconduct claim
from the application of the time limitation contained in Rule 32.2(c), Ala.
R.Crim. P., is without merit. Likewise, because the Alabama Supreme
Court did not establish a new law or a new ground for Rule 32 relief in Ex
parte Burgess, Jenkins is not entitled to equitable tolling based on the
release of that case. See Fitts v. Eberlin, 626 F.Supp.2d 724, 733 (N.D.
Ohio 2009) (“Given that no new rule exists that applies to [the
petitioner’s] case, [his] plea for equitable tolling . . . must fail.”).
Therefore, unless Jenkins filed his Rule 32 petition before the time
limitation expired, this circuit correctly dismissed the petition pursuant to
Rule 32.7(d), Ala. R.Crim. P. See Wood v. State, 891 So.2d 398, 420
(Ala.Crim.App. 2003) (holding that juror-misconduct claims are
nonjurisdictional); Bowen v. State, 899 So.2d 310, 312 (Ala.Crim.App.
2004) (holding that nonjurisdictional, constitutional claims are subject to
the procedural bars set forth in Rule 32, Ala. R.Crim. P.); Tucker v. State,
956 So.2d 1170, 1171 (Ala.Crim.App.2006) (holding that
nonjurisdictional claims are subject to the time limitation contained in
Rule 32.2(c), Ala. R.Crim. P.).
Rule 32.2(c), Ala. R.Crim. P., provides:
Subject to the further provisions hereinafter set out in this
section, the court shall not entertain any petition for relief
from a conviction or sentence on the grounds specified in
Rule 32.1(a) and (f), unless the petition is filed: (1) In the
case of a conviction appealed to the Court of Criminal
Appeals, within one (1) year after the issuance of the
certificate of judgment by the Court of Criminal Appeals
66
under Rule 41, Ala.R.App.P.; or (2) in the case of a
conviction not appealed to the Court of Criminal Appeals,
within one (1) year after the time for filing an appeal lapses;
provided, however, that the time for filing a petition under
Rule 32.1(f) to seek an out-of-time appeal from the
dismissal or denial of a petition previously filed under any
provision of Rule 32.1 shall be six (6) months from the date
the petitioner discovers the dismissal or denial, irrespective
of the one-year deadlines specified in the preceding subparts
(1) and (2) of this sentence; and provided further that the
immediately preceding proviso shall not extend either of
those one-year deadlines as they may apply to the previously
filed petition. The court shall not entertain a petition based
on the grounds specified in Rule 32.1(e) unless the petition
is filed within the applicable one-year period specified in the
first sentence of this section, or within six (6) months after
the discovery of the newly discovered material facts,
whichever is later; provided, however, that the one-year
period during which a petition may be brought shall in no
case be deemed to have begun to run before the effective
date of the precursor of this rule, i.e., April 1, 1987.
The Alabama Supreme Court affirmed this Court’s judgment
affirming Jenkins’s capital-murder convictions and sentences of death on
May 28, 1993, Ex parte Jenkins, 627 So.2d 1054, and this Court issued
its certificate of judgment on October 28, 1993. Jenkins did not file his
current Rule 32 petition until October 1, 2008, well after the time
limitation contained in Rule 32.2(c), Ala. R.Crim. P., had expired.
Because Jenkins filed his Rule 32 petition after the time limitation had
expired, the circuit court correctly dismissed it pursuant to Rule 32.7(d),
Ala. R.Crim. P. FN.12.
FN.12. Because this Court has affirmed the dismissal of
Jenkins’s petition based on Rule 32.2(c), Ala. R.Crim. P., it
will not discuss the circuit court’s alternative reasons for
dismissing the petition.
67
For the foregoing reasons, the judgment of the circuit court is
affirmed.
Id. at 1247-50.
On September 21, 2012, the Alabama Supreme Court denied certiorari as to the
juror misconduct claim. Ex parte Jenkins, 105 So. 3d 1250 (Ala. 2012). The United
States Supreme Court denied Jenkins’s petition for a writ of certiorari on March 25,
2013. Jenkins v. Alabama, 133 S. Ct. 1634 (2013).
The respondent maintains that the state courts properly held in both post
conviction proceedings, that Jenkins’s juror misconduct claim was procedurally barred
from review, and the claim is likewise barred from review in this court. (Doc. 40 at 816). Jenkins counters that his claim is properly before this court for de novo review of
the merits, because “the Rule 32 court incorrectly found the claim was procedurally
defaulted for failure to raise this claim at trial or on appeal.” (Doc. 48 at 6). Jenkins’s
argument focuses solely on the finding made by the Alabama Court of Criminal
Appeals during the first Rule 32 proceedings. Specifically, he argues that:
The Alabama Court of Criminal Appeals (“CCA”) held that Mr. Jenkins’
claim was procedurally barred under Alabama Rules of Criminal
Procedure 32.2(a)(3) and (5) because it was not raised at trial or on direct
appeal. See Jenkins v. State, 972 So.2d 165, 168 (Ala. Crim. App. 2005)
(“Jenkins II”). FN.2. However, the violation of a state procedural rule
forecloses federal review only if the rule is “firmly established and
regularly followed.” James v. Kentucky, 466 U.S. 341, 348 (1984). At the
time Mr. Jenkins raised the juror misconduct claim, Alabama did not have
68
a firmly established and regularly followed rule barring such claims first
raised in Rule 32 proceedings; to the contrary, Alabama law expressly
provided for such claims to be brought during Rule 32 proceedings. See
State v. Freeman, 605 So.2d 1258, 1259 (Ala. Crim. App. 1992).
FN.2. The Alabama courts subsequently denied Mr.
Jenkins’ successive Rule 32 petition raising this claim, also
on procedural grounds related to the rules governing
successive petitions in Alabama. (Respondent’s
Checklist-Successive Pet’n, Tab #R-18, pp. 17-40; Tab
#R-20, pp. 23-27.) Mr. Jenkins understands the State to
argue only that the original procedural bar the state courts
invoked – that the juror misconduct claim should have been
raised prior to post-conviction proceedings – precludes
federal review of this claim. Of course, it would be
exorbitant and manifestly unfair to preclude federal review
of Mr. Jenkins’ constitutional claims on the basis of a
procedural bar that was invoked only after he attempted to
provide the state courts with one more opportunity to rule on
his claims. See Lee v. Kemna, 534 U.S. 362, 376 (2002);
Card v. Dugger, 911 F.2d 1494, 1517 (11th Cir. 1990).
The Alabama Supreme Court (“ASC”) finally resolved the
inconsistent application of this procedural bar in Ex parte Burgess, 21
So.3d 746, 754 (Ala. 2008), when it held: “It is unreasonable to hold that
a defendant must uncover any and all juror misconduct in the form of
inaccurate responses to voir dire examination in time to raise such claims
in a motion for new trial or on appeal.” Because the procedural bar the
State invokes to preclude merits review was neither firmly established nor
regularly followed before the ASC decided Burgess in 2008, this Court
should review the merits of Mr. Jenkins’s juror misconduct claim. See Lee
v. Kemna, 534 U.S. 362, 387 (2002) (remand for merits review where
procedural bar was not an adequate state law ground barring relief).
(Id. at 6-7).
A claim is not subject to procedural default unless the “last state court to review
69
the claim states clearly and expressly that its judgment rests on a procedural bar . . .
and that bar provides an adequate and independent state ground for denying relief.”
Johnson v. Singletary, 938 F.2d at 1173. The last state court to issue a reasoned
opinion on this claim was the Alabama Court of Criminal Appeals, which held that the
circuit court correctly dismissed Jenkins’s second Rule 32 petition based upon Rule
32.2(c), Ala. R. Crim. P. Although Jenkins argues extensively that the appellate court’s
decision on appeal from the denial of his first Rule 32 petition does not provide an
adequate and independent state ground for denying relief, because the rule at issue was
not firmly established or regularly followed, he makes no such argument with respect
to the appellate court’s decision on his most recent Rule 32 petition. Indeed, the
Eleventh Circuit has “specifically held that the Alabama statute of limitation in Rule
32.2 is firmly established and regularly followed for purposes of applying the
procedural default doctrine.” Seibert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006)
(citing Hurth v. Mitchem, 400 F.3d 857, 862–63 (11th Cir. 2005) (holding consistently
with the earliest prior panel opinion that “Alabama’s Rule 32.2(c) statute of limitations
is firmly established and regularly followed in the courts of that state”)). See also
Kuenzel v. Commissioner, Alabama Department of Corrections, 690 F.3d 1311, 1314
(11th Cir. 2011) (holding that Rule 32.2(c) is an independent and adequate state
procedural rule).
70
The last state court to address Jenkins’s juror misconduct claim clearly held that
the claim was procedurally barred by Rule 32.2(c). That bar provides an adequate and
independent state ground for denying relief. Thus, the claim is procedurally barred from
review in this court unless Jenkins can show that he had cause for the default and actual
prejudice therefrom, or that the failure to consider the claim will result in a
“fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 749-50.
Jenkins has not alleged that cause and prejudice exist to excuse the default of this
claim.
Although he claims that it would be “exorbitant and manifestly unfair” to
preclude this claim on the basis of the procedural bar, Jenkins’s argument does not
meet the miscarriage of justice exception. That exception requires a petitioner to show
that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Schlup v. Delo, 513 U.S. at 327. “To establish the requisite
probability, the petitioner must show that it is more likely than not that no reasonable
juror would have convicted him.” Id. Jenkins makes no argument that he is actually,
factually innocent. Thus, he cannot meet the “fundamental miscarriage of justice”
exception.
Instead, Jenkins argues that “it would be exorbitant and manifestly unfair” for
this court to decline to review his claim “on the basis of a procedural bar that was
71
invoked [by the state court] only after he attempted to provide the state courts with one
more opportunity to rule on his claims.” (Doc. 48 at 7 n.2). He cites Lee v. Kemna, 534
U.S. at 376 and Card v. Dugger, 911 F.2d at 1517 in support of this contention. The
issue in both cases was whether a state court’s procedural rule was firmly established
and regularly followed. Lee v. Kemna held that there are “exceptional cases in which
exorbitant application of a generally sound rule renders the state ground inadequate to
stop consideration of a federal question. See Davis v. Wechsler, 263 U.S. 22, 24, 44
S.Ct. 13, 68 L.Ed. 143 (1923) (Holmes, J.) (“Whatever springs the State may set for
those who are endeavoring to assert rights that the State confers, the assertion of
federal rights, when plainly and reasonably made, is not to be defeated under the name
of local practice.”). Kemna, 534 U.S. at 376. Card v. Dugger held that “a state court’s
procedural rule must be faithfully and regularly applied” and “must not be manifestly
unfair in its treatment of a petitioner’s federal constitutional claim.” Card, 911 F.2d at
1517.
Jenkins has offered no support for his theory that the default of this claim should
be excused because it would be exorbitant and manifestly unfair for this court to uphold
the procedural bar of his juror misconduct claim despite the decision of the last state
court to address the claim, clearly and expressly stating that the claim was procedurally
barred by Rule 32.2(c), a procedural bar that is firmly established and regularly
72
followed in Alabama courts. This court is not aware of any such exception to the
procedural default rules.
Because the last state court to address Jenkins’s juror misconduct claim clearly
and expressly found the claim was procedurally defaulted pursuant to Rule 32.2(c), and
that court’s findings rest upon a firmly established and regularly followed state
procedural rule, the claim is procedurally barred from review in this court.
Jenkins argues alternatively, that “[t]o the extent this [c]ourt finds that the state
court denied the claim on the merits, the state court adjudication of this claim resulted
in a decision that was contrary to, and involved an unreasonable application of,
established United States Federal law, and was also based on an unreasonable
determination of the facts in light of the state court record.” (Doc. 36 at 11 n.3). The
respondents counter that the claim should be dismissed because the claim was
“thoroughly addressed” and denied on the merits,” and Jenkins has not shown that the
decision was contrary to or an unreasonable application of clearly established Federal
law, or based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. (Doc. 40 at 16-21).
The AEDPA’s deferential standard of review is limited to claims that were
“adjudicated on the merits in State court proceedings.” Title 28 U.S.C. § 2254(d). “A
decision that is based on state procedural grounds is not an adjudication on the merits.”
73
Williams v. Alabama, 791 F.3d 1267, 1273 (11th Cir. 2015) (citing Harrington v.
Richter, 562 U.S. 86, 99 (2011)).
In Jenkins’s case, the second Rule 32 court first found the claim to be “barred
from this Court’s review by the statute of limitations procedural bar,” then alternatively
addressed the merits of the claim, concluding that even if the claim were properly
before the court, which it was not, it was meritless. (Second Rule 32 C.R. Vol. 9, Tab
18 at 15 and 23-24). The Court of Criminal Appeals affirmed the Rule 32 court, holding
that because “Jenkins filed his [second] Rule 32 petition after the time limitation had
expired, the circuit court correctly dismissed it pursuant to Rule 32.7(d), Ala. R. Crim.
P.” Jenkins, 105 So. 3d at 1249-50. The court noted that because it had “affirmed the
dismissal of Jenkins’s petition based on Rule 32.2(c),” . . . it would “not discuss the
circuit court’s alternative reasons for dismissing the petition.” Id. at 1250 n. 12.
Neither the decision of the Rule 32 court, nor the decision of the Alabama Court
of Criminal Appeals is entitled to deference under § 2254(d). First, this court cannot
treat the appellate court’s decision as a merits determination because that court clearly
stated that it was affirming the Rule 32 court’s decision “[b]ecause Jenkins filed his
Rule 32 petition after the time limitation had expired.” Id. at 1250. The appellate court
noted that because it had “affirmed the dismissal of Jenkins’s petition based on Rule
32.2(c), Ala. R. Crim. P., it [would] not discuss the circuit court’s alternative reasons
74
for dismissing the petition.” Id. at n.12. “As the Supreme Court explained in Richter,
we only presume that a state court reached the merits when there is no ‘reason to think
some other explanation for the state court’s decision is more likely.’” Williams v.
Alabama, 791 F.3d 1267, 1273 (11th Cir. 2015) (quoting Harrington v. Richter, 562
U.S. 86, 99-100 (2011)). In Jenkins’s case, the Alabama Court of Criminal Appeals
expressly held that the claim was barred by the statute of limitations. Thus, this court
cannot construe the state appellate court’s decision as a merits determination that is
entitled to deference under § 2254(d).
Likewise, the Rule 32 court’s decision is not entitled to § 2254(d) deference.
First, that court concluded that Jenkins was “not entitled to relief on his juror
misconduct claim - the sole claim that he raises in his second Rule 32 petition - because
his claim is barred from this Court’s review by the statute of limitations procedural bar
and is not, therefore, properly before this court.” (Second Rule 32 C.R. Vol. 9, Tab 18
at 23). Although that court went on to find that the claim was meritless, it made clear
that it was only addressing the merits of the claim alternatively, by stating that
“[a]ssuming, however, that Jenkins’s juror misconduct claim is properly before this
court - which it is not - this Court finds that it is meritless.” (Id. at 23-24). The court’s
alternative ruling on the merits of the claim does not negate its clear finding that the
claim was procedurally barred by the statute of limitations.
75
Further, to the extent the Rule 32 court could be found to have ruled on the
merits of the claim, that decision was rejected by the Alabama Court of Criminal
Appeals when it held the claim was procedurally barred by the statute of limitations and
specifically stated that it would not discuss the Rule 32 court’s alternative reasons for
dismissing the petition.
This means that the Court of Criminal Appeals found itself—and
necessarily, the Rule 32 court as well—without the authority to even
consider the merits of [the petitioner’s] claims. See Davis, 9 So.3d at 522
(applying Rule 32 procedural bar sua sponte and stating that “this Court
has no authority to modify or amend the procedural bars contained in Rule
32”); see also Hurth v. Mitchem, 400 F.3d 857, 858 (11th Cir. 2005) (“A
rule is jurisdictional if the petitioner’s non-compliance with it actually
divests the state courts of power and authority to decide the underlying
claim, instead of merely offering the respondent an opportunity to assert
a procedural defense which may be waived if not raised.”). Thus, the
Court of Criminal Appeals disagreed that the Rule 32 Court had
jurisdiction to make any merits determination at all, including the one that
it made.
. . . [When] a state trial court issues a decision that the state
appellate court does not agree with, we consider only the state appellate
court’s decision.
. . . [In this case] the Court of Criminal Appeals’ holding that the
Rule 32 court did not have the authority to consider the merits of [the
petitioner’s] claims is not consistent with the Rule 32 court’s decision
addressing the merits of those claims. Thus, our respect for the state court
judgment—and the “fundamental principle that state courts are the final
arbiters of state law,” Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338,
1355 (11th Cir. 2005) (quotation omitted)—prevents us from deferring to
the Rule 32 court’s decision.
76
Williams v. Alabama, 791 F.3d 1267, 1273-74 (11th Cir. 2015) (alterations added).
Because the Alabama Court of Criminal Appeals clearly held the claim was barred by
the statute of limitations, this court is prevented from deferring to the Rule 32 court’s
alternative decision on the merits of this claim.
B.
The Eighth Amendment Prohibits Executing Mr. Jenkins Because he is
Mentally Retarded
This claim was denied on March 31, 2015. (Doc. 54). Therefore, the court does
not address it again in this Memorandum Opinion.
C.
Trial Counsel’s Inadequate Performance Deprived Mr. Jenkins of the
Effective Assistance of Counsel
Jenkins maintains that his attorneys were ineffective at all stages of his trial, and
in particular, at the sentencing hearing, where he claims “they failed to do anything
prior to trial, leaving them unprepared to present evidence or reasons for the jury to
spare his life.” (Doc. 12 at 25). He adds that his attorneys’ abdication of their
constitutional duty to subject the state’s case to meaningful adversarial testing, resulted
in their failure to meet the minimal standard of reasonableness, thereby allowing
Jenkins to be convicted and sentenced to death in violation of Strickland v.
Washington, 466 U.S. 668, 686 (1984). (Id.). Jenkins asserts that the state court’s
adjudication of these claims resulted in decisions that were contrary to, and/or an
unreasonable application of clearly established Federal law, and were based on
77
unreasonable determinations of the facts. (Id.).
1.
Counsel’s Deficient Performance Deprived Mr. Jenkins of the
Effective Assistance of Counsel During the Penalty Phase
Jenkins alleges that his attorneys did no investigation into his background,
history, record or character prior to the penalty phase of his trial. (Id. at 25-28).
Specifically, he claims that:
Trial counsel did not interview Mr. Jenkins’s family members or
friends at any time. Although counsel was awarded funds to retain an
investigator, they failed to utilize these resources to retain an investigator
to locate and interview penalty phase witnesses. Trial counsel did not
interview jail guards who supervised Mr. Jenkins at the St. Clair County
Jail. Trial counsel did [not] obtain any records from Mr. Jenkins’s
background or history, including records created by the State of Alabama
documenting Mr. Jenkins’s background and many of his positive qualities.
Counsel took no action to obtain funds or retain a mental health expert,
such as a psychologist, to testify and put Mr. Jenkins’s background
experiences in a more sympathetic context.
It is undisputed that Mr. Jenkins’s trial attorneys discussed the
possibility of penalty phase for the first time just four days prior to trial.
(R2 at 407; R3 at 419.) Even then, neither made any attempt to
investigate and present mitigating evidence. Admittedly, counsel’s failure
to develop a mitigation case arose from a “complete lack of appreciation
for . . . mitigating evidence and how it is presented.” (R2 at 324.) Had
counsel conducted even a minimal investigation, they would have readily
uncovered a wealth of mitigating evidence which should have been
presented to the jury. These failures, individually and collectively,
rendered counsel’s performance ineffective during the penalty phase of
trial under. Strickland v. Washington, 466 U.S. 668 (1984).
(Id. at 27-28) (alteration added).
78
As with all ineffective assistance of counsel claims, both deficient performance
and prejudice must be shown. To satisfy the deficient performance prong, counsel’s
representation must have fallen below “an objective standard of reasonableness,” which
is measured against the “prevailing professional norms” at the time. Strickland, 466
U.S. at 688. As the Supreme Court recently reemphasized, “[t]hat standard is
necessarily a general one,” as “[n]o particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a criminal
defendant.” Bobby v. Van Hook, 558 U.S. 4, 7- 8 (2009) (quoting Strickland, 466 U.S.
at 688-689) (finding the Court of Appeals erred by treating the ABA’s guidelines “not
merely as evidence of what reasonably diligent attorneys would do, but as inexorable
commands with which all capital defense counsel ‘must fully comply’”).
When evaluating trial counsel’s investigation and preparation for the penalty
phase of a capital trial, there is no checklist of tasks counsel must complete to deem an
investigation reasonable. It is nonetheless well-settled that trial counsel has an
“obligation to conduct a thorough investigation of the defendant’s background” when
preparing for a capital sentencing. Porter v. McCollum, 558 U.S. 30, 39 (2009)
(holding that counsel’s obligation was “unquestioned” under prevailing professional
norms at the time of trial) (quoting Williams v. Taylor, 529 U.S. at 396); Schriro v.
79
Landrigan, 550 U.S. 465 (2007) (counsel’s investigation of possible mitigating
evidence was indisputably constitutionally insufficient, given that counsel did little to
prepare for the sentencing aspect of the case); Wiggins v. Smith, 539 U.S. 510 (2003);
Strickland v. Washington, 466 U.S. at 691(counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary); see also, Sears v. Upton, 561 U.S. 945, 1032 (2010) (noting that it was
“unsurprising” that the state postconviction court found that “the cursory nature of
counsel’s investigation into mitigation evidence – ‘limited to one day or less, talking
to witnesses selected by [the defendant’s] mother’ – was ‘on its face . . .
constitutionally inadequate’”) (alteration added); Williams v. Allen, 542 F.3d 1326,
1339 (11th Cir. 2008) (investigation of mitigating evidence in capital defendant’s
background fell short of prevailing professional norms); Housel v. Head, 238 F.3d
1289, 1294 (11th Cir. 2001) (noting that a “failure to investigate can be deficient
performance in a capital case when counsel totally fails to inquire into the defendant’s
past or present behavior or life history”).
However, consideration must be given to “‘counsel’s perspective at the time’
investigative decisions are made,” and a “heavy measure of deference” must be given
to counsel’s judgments. DeYoung v. Schofield, 609 F.3d 1260, 1284 (11th Cir. 2010)
(quoting Rompilla v. Beard, 545 U.S. 374, 380-81 (2005)). Thus, even when, in
80
hindsight, an investigation might be viewed as less than adequate, counsel’s
performance will not always be deemed deficient, especially when the defendant
contributed in some way to counsel’s perspective. See, e.g., Bobby v. Van Hook, 558
U.S. 4, 12-13 (2009) (because counsel had uncovered significant mitigating evidence
from the defendant’s background, decision not to seek more fell well within the range
of professionally reasonable judgments); Strickland, 466 U.S. at 691(when a defendant
has given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those investigations may not later
be challenged as unreasonable); Johnson v. Upton, 615 F.3d 1318 (11th Cir. 2010) (an
attorney does not perform deficiently by not discovering mitigating evidence that his
client did not mention to him); Reed v. Secretary, Florida Dept. of Corrections, 593
F.3d 1217 (11th Cir. 2010) (defendant’s own words and deeds play a role in assessing
the reasonableness of counsel’s conduct); Cummings v. Secretary for Dept. of
Corrections, 588 F.3d 1331 (11th Cir. 2009) (although counsel may not “blindly
follow” his client’s instructions not to look for or use mitigation evidence, a mentally
competent defendant’s instruction not to investigate or not to present mitigation
evidence may make counsel’s decision not to do so reasonable); McClain v. Hall, 552
F.3d 1245, 1251-52 (11th Cir. 2008) (whether defendant informed his trial counsel
about defendant’s abusive childhood is “extremely important” to determining
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reasonableness of counsel’s performance); Newland v. Hall, 527 F.3d 1162 (11th Cir.
2008) (defense attorney’s investigation prior to penalty phase of the trial was
reasonable due to the information provided by the defendant); Stewart v. Sec’y, Dep’t
of Corr., 476 F.3d 1193, 1211 (11th Cir. 2007) (counsel’s failure to present evidence
of defendant’s alleged abuse was not deficient because defendant did not inform
counsel of this abuse); Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006)
(counsel’s failure to discover evidence of sexual abuse was not deficient given
defendant’s repeated denials of abuse).
To satisfy the prejudice prong, a petitioner must show that, but for his counsel’s
deficiency, there is a reasonable probability he would have received a different
sentence. Porter v. McCollum, 558 U.S. at 41. When evaluating a claim of ineffective
assistance in the context of a penalty phase mitigation investigation, courts must
undertake a “probing and fact-specific analysis” that considers the totality of the
available mitigation evidence, both that adduced at trial and in any postconviction
proceedings, in order to assess whether there is a reasonable probability that defendant
would have received a different sentence after a constitutionally sufficient mitigation
investigation. Sears v. Upton, 130 S.Ct. at 3266-67; Porter v. McCollum, 558 U.S. at
41; Wong v. Belmontes, 558 U.S. 15, 20 (2009).
Relevant to this analysis is whether the newly unearthed mitigating evidence is
82
merely cumulative or simply additional details about a defendant’s background that
would have “barely altered the sentencing profile presented to the sentencing judge,”
or whether it would have been the only evidence that could have “humanized” the
defendant, allowing the jury or the sentencing judge to “accurately gauge his moral
culpability.” Porter v. McCollum, 558 U.S. at 41. Also relevant is whether the evidence
might have been viewed unfavorably, or opened doors for the prosecution to bring in
damaging rebuttal evidence, Cook v. Upton, Civil Action No. 5:09-CV-25 (CAR), 2010
WL 1050404, at *11 (M.D. Ga. Mar. 18, 2010) (counsel’s failure to introduce evidence
concerning the petitioner’s mental health did not prejudice the petitioner since the
records contained many details that were potentially harmful to the petitioner), or
whether the aggravating circumstances of the crime are such that they would outweigh
any prejudice caused by the failure to present mitigating evidence, Dobbs v. Turpin,
142 F.3d 1383, 1390 (11th Cir.1998).
Jenkins faults counsel for failing to investigate and present several types of
mitigating evidence: (a) evidence relating to Jenkins’s childhood and background; (b)
Jenkins’s age at the time of the offense, lack of significant prior criminal history, and
intoxication at the time of the crime; and (c) Jenkins’s model behavior and positive
adjustment to pretrial incarceration. He also faults counsel for (d) failing to request a
continuance of the penalty phase of the trial. These claims were raised in Jenkins’s
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Rule 32 petition and denied by the trial court. (Rule 32 C.R. Vol. 45, Tab 77 at 32444). The Alabama Court of Criminal Appeals affirmed the denial of the claims:
Jenkins argues that his attorney was deficient at the penalty phase
of his capital trial for failing to investigate, to obtain records, to interview
Jenkins’s family members, and to seek expert assistance.
“In a challenge to the imposition of a death sentence, the
prejudice prong of the Strickland inquiry focuses on whether
‘the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.’” Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.
1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122
L.Ed.2d 695 (1993).
Jones v. State, 753 So.2d 1174, 1197 (Ala.Crim.App. 1999).
When the ineffective assistance claim relates to the
sentencing phase of the trial, the standard is whether there
is “a reasonable probability that, absent the errors, the
sentencer - including an appellate court, to the extent it
independently reweighs the evidence - would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland [v.
Washington ], 466 U.S. [668,] at 695, 104 S.Ct. [2052,] at
2069 [(1984)].
Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994).
Jenkins first argues that his attorneys never contacted any of his
family members and that they failed to present mitigating evidence of his
life and background.
Scofield testified at the Rule 32 hearing that he was in charge of the
guilt phase and that Downey was in charge of the penalty phase. Downey
did not testify nor did he execute an affidavit to explain his strategy and
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any preparation and investigation he conducted for the penalty phase. The
record of the direct appeal also reflects that on October 1, 1989, Downey
filed a motion for a continuance. In that motion he argued, “Further
discovery and investigation (including a possible trip to California) [are]
needed for proper preparation of the case, requiring more time than is
available between this present day and the trial date now set on October
30, 1989.” (Trial record, p. 68.) That motion was granted. The fee
declaration Downey filed in circuit court for payment for his services is
contained in the record. It reflects that Downey spent 171 hours on the
case and that he spent over 25 hours talking with Jenkins in more than 10
visits to the jail where Jenkins was housed awaiting trial. It also shows
that Downey spoke with Jenkins’s grandmother. There was absolutely no
testimony as to any conversations Downey had with Jenkins, although it
is clear from Downey’s itemization of hours in his attorney fee declaration
that those conversations were extensive.
Scofield did testify at the Rule 32 hearing that Jenkins told him
about his abusive childhood, his abusive relationship with his stepfather,
the trouble he was in when he was a juvenile, and the fact that he ran
away from home as a child. Scofield testified that he could not recall
whether Jenkins told him that he was beaten on a daily basis but that he
thought that he would have remembered that information. (R. 394.) Last,
Scofield testified that he did not know what preparations Downey had
made for the penalty phase. (R. 406.)
The reasonableness of counsel’s investigation and
preparation for the penalty phase, of course, often depends
critically upon the information supplied by the defendant.
E.g. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334,
340-41 (1998) (collecting cases). Counsel cannot be found
ineffective for failing to introduce information uniquely
within the knowledge of the defendant and his family which
is not provided to counsel.
Commonwealth v. Bond, 572 Pa. 588, 609-10, 819 A.2d 33, 45-46
(2002).
85
At the evidentiary hearing Jenkins presented the testimony of his
half brother, Michael Jenkins; two cousins, Tammy Pitts and Betty
DeLavega; his grandmother, Doris Wagoner; and a friend, Sherry Seal.
When addressing this issue the circuit court made very detailed findings
of fact that related to the witnesses Jenkins called to testify at the
evidentiary hearing. We quote extensively from those very thorough
findings:
The Court initially finds that because Jenkins did not
present any testimony from Stan Downey at the evidentiary
hearing, he has not met his burden of proof under Rule 32.3.
The record shows that Mr. Downey was responsible for the
penalty phase of the trial. Yet, Mr. Downey, who was not
shown to be unavailable to testify, was not called by Jenkins
as a witness to support his claim of ineffectiveness at the
penalty phase. Instead, Jenkins attempted to elicit testimony
from Mr. Scofield concerning Mr. Downey’s actions. The
Court is puzzled as to why Jenkins did not call the one
lawyer asserted to be responsible for that portion of the trial
against which most of his criticism is levied. While this was
Jenkins’s choice, the Court finds that this choice resulted in
Jenkins’s failure to meet his burden of proof. The record is
virtually silent as to what actions were or were not taken or
what was or was not done by Mr. Downey at trial and why.
It is possible that his actions could have been reasonable and
strategic under the circumstances and, in large part,
undertaken based upon what Jenkins told him. The Court,
therefore, finds that Jenkins did not prove that Mr.
Downey’s representation was deficient or that he was
prejudiced as a result of that representation.
The Court will, however, based upon the evidence
presented at the hearing, attempt to address Jenkins’s claim
of ineffectiveness of counsel at the penalty phase. As
previously stated in this order, Jenkins must show that
counsel’s representation was both deficient and that the
deficient performance prejudiced the defense. The Court
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finds that Jenkins has not proven that, assuming counsel’s
deficiency, there was a reasonable probability that the
sentencer, including the appellate court, to the extent it
reweighs the evidence, would have concluded that a
weighing of the aggravating and mitigating circumstances
did not warrant death.
The Court notes that for the reasons that will follow,
the evidence presented at the hearing would not have
affected the sentence this Court would have imposed on
Jenkins. The aggravating circumstances clearly outweighed
any mitigation caused by Jenkins’s “abusive childhood”,
below average intelligence, lack of a criminal history, and
his age. Jenkins kidnapped, robbed, and brutally murdered
Tammy Hogeland. He then disposed of her nude body on
the side of the interstate, leaving her to decompose beyond
recognition. Death was the appropriate punishment in this
case.
After listening to the evidence presented at the
hearing and observing the demeanor of the witnesses, the
Court finds that the witnesses were biased, that they grossly
exaggerated their testimony, and that they were not credible
for the following reasons:
The record reflects that, at the time of the trial, friends
and family of Jenkins were contacted by a probation officer
regarding the preparation of a pre-sentence report. Nothing
in the report indicated that Jenkins was abused to the extent
alleged at the evidentiary hearing. Additionally, although
numerous records were introduced at the hearing, there were
no medical records which would corroborate the level of
abuse alleged by several of Jenkins’s witnesses.
Jenkins’s cousin, Tammy Lynn Pitts, was not a
credible witness. Ms. Pitts testified that she lived with
Jenkins and his family on a daily basis for the majority of
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her early life. She claimed that Jenkins was beaten “daily”
from the time he was an infant, to the time he left home
around the age of thirteen. Ms. Pitts stated that Jenkins was
“pounded on” and that his stepfather would take whatever
was in his hand, put all of his weight behind it, and hit
Jenkins with “full force.” She related one alleged incident
where Jenkins’s stepfather, a man over six feet tall, hit
Jenkins more than once with a full size shovel on the back.
Ms. Pitts described the incident as “normal.” According to
the witness, Jenkins would be laid up in bed for weeks at a
time due to the severity of the beatings. Ms. Pitts even
testified that Jenkins would receive additional beatings
during the time he was laid up recovering from previous
abuse. However, Jenkins was apparently never taken to the
hospital and there were no medical records reflecting
injuries consistent with the alleged severity of the abuse
alleged by Ms. Pitts.
The Court also finds significant school records which
noted that Jenkins suffered from a rash and gingivitis, but
contained absolutely no indication that he was beaten on a
regular basis. Ms. Pitts additionally testified concerning
Jenkins’s difficulty in controlling his bowels. She stated that,
as a result of this problem, Jenkins would be forced by his
parents to wear ‘soiled’ clothing to school ‘all the time.’
Again, the Court finds it difficult to believe that school
records would reflect the notice of a rash, but would be
completely devoid of any indication that a child was
regularly attending school in clothes soiled with feces. Ms.
Pitts also testified that Jenkins was locked in his room 24
hours a day 7 days a week. According to her, he was not
even allowed to come out to eat dinner with the rest of the
family. This contradicted the testimony of Jenkins’s brother
who stated that Jenkins was sent to bed without dinner, “on
occasions,” because he was bad. If Ms. Pitts is to be
believed, Jenkins eked a meager existence of scraps thrown
to him after dinner by other members of the family.
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Ms. Pitts testified that she called Child Protection
Services [(CPS)] on two occasions during her twenty plus
years in the Jenkins household. She stated that the first time,
CPS responded to the home but took no action. The second
time, there was no response of any kind. The Court finds it
to be unbelievable that Ms. Pitts would feel it necessary to
call CPS on only two occasions when she claimed the abuse
and maltreatment was a “daily” occurrence. It is also
unbelievable that child protective services would take no
action.
Finally, Ms. Pitts testified that she loved her cousin
and felt it would be a tragedy if he were executed. She
stated that she felt guilty about Jenkins’s childhood and that
she believed she was helping him by testifying at the
hearing. Ms. Pitts displayed a strong bias in favor of
Jenkins. During direct examination, Ms. Pitts appeared to be
very emotional, often crying during her testimony. However,
on cross-examination by the State, her demeanor changed
dramatically. She became guarded and far less emotional.
After hearing the testimony of Ms. Pitts, weighing the
interests of the witness and observing the witnesses’
demeanor, the Court finds the testimony to be incredible.
Not unlike the testimony of Tammy Lynn Pitts, the
Court finds the testimony of Jenkins’s half brother, Michael,
biased and not credible. Not only did his testimony conflict
with that of other witnesses, it was also self-contradictory.
The Court will not discuss the testimony in its entirety,
however, a few examples will make this point.
Michael Jenkins testified that the family moved ten or
fifteen times during his youth because his father did not
work very much. This conflicted with Ms. Pitt’s claim that
the family moved maybe four times and that the stepfather
was gainfully employed. Michael Jenkins stated that Jenkins
would occasionally miss meals because he was sent to his
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room for “being bad.” Ms. Pitts stated that Jenkins was not
allowed to eat with the family and would leap up at the food
thrown at him after dinner while locked in his room.
Additionally, contrary to Ms. Pitts testimony that Jenkins
was locked in his room “twenty-four hours a day seven days
a week,” Michael stated that Jenkins was locked in his room
for “a couple of hours or so . . . every time he done
something.”
As noted above, the testimony of Michael Jenkins
was also self-contradictory. Describing the frequency of the
alleged beatings, Michael initially stated “if it wasn’t once
a day, it would be every other day or every three days.” He
then stated that Jenkins would get a whipping whenever he
had a bowel movement in his pants and that his occurred
“once a day.” Subsequent to that, Michael described the
discipline imposed stating that Jenkins “would be sent to his
room and a number of things happened,” including an
occasional beating. The witnesses’ testimony was in fact,
filled with apparent confusion and contradictions. He
originally testified that Jenkins was three or four years old
at the time his stepfather went to prison for robbery.
However, he subsequently testified that Jenkins was
conceived while his stepfather was in prison. He also
contradicted himself a number of times concerning whether
Jenkins ever wrote to him requesting him to come to
Alabama and testify during his capital murder trial. He
finally stated conclusively that he received a letter
mentioning that Jenkins might need him to testify at the trial.
Michael stated that he had no “curiosity or concern about
what was going on.”
Finally, Michael testified that he believed that Jenkins
was innocent and that he could not have committed the
crime. Michael himself had never committed an act of
violence despite the fact that he was raised in an
environment similar to that of Jenkins. He also testified
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concerning the problems his other two siblings were
experiencing in their adult lives. The Court notes that all of
the testimony indicated that these two individuals were
never abused as children and were, in fact, babied and
spoiled. They received this treatment despite the fact that
Stephen Jenkins was not the biological father of either one
of them. Any contention that a causal connection exists
between the abuse allegedly suffered by Jenkins and the
murder of Tammy Hogeland, is undercut by evidence within
Jenkins’s own family. After hearing the testimony of
Michael Jenkins, weighing the interests of the witness and
observing the witnesses demeanor, the court finds the
testimony incredible and assigns it little weight.
Jenkins also presented the testimony of a friend,
Sharon Seal. Mrs. Seal stated that she came to know Jenkins
through her husband, Lonnie Seal. The trial record reveals
that Lonnie Seal testified at the penalty phase of his trial as
a character witness. After reviewing the testimony of Mrs.
Seal, the Court finds that her testimony would have been
cumulative to that of her husband. Furthermore, Mrs. Seal
testified at the evidentiary hearing that her husband knew
Jenkins better than she did.
The Court also noted contradictions in Mrs. Seal’s
testimony. For example, she testified that Jenkins’s trial
lawyers never talked to her or contacted her about being a
witness at the trial. However, on cross-examination, Mrs.
Seal stated that she did not attend the trial because “I was
told by Mark’s lawyers that we were not allowed in the
courthouse because we might be potential witnesses.” She
specifically stated that she was told this by Mr. Downey.
Because Mr. Downey did not testify at the hearing, the
Court can only speculate as to why Mrs. Seal was not called
to testify.
The witness in question also displayed a strong bias
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in favor of Jenkins. She stated that she believed that he was
innocent, that he did not get a fair trial, and that it would be
a tragedy if he were executed. The Court would also point
out that Mrs. Seal’s testimony directly contradicted other
theories of mitigation presented by counsel for Jenkins at the
hearing. Her testimony related to the good character of
Jenkins, his non-violent nature, his generous and caring
attitude, his love for her children, and other qualities of a
similar nature. Other evidence presented at the hearing,
instead, dealt with Jenkins’s abusive childhood, and
culminated in Dr. David Lisak’s testimony that abused
children are at risk to commit violence. The evidence
suggested on one hand that Jenkins was a wonderful person
who would never hurt anyone. However, on the other hand,
evidence was presented to support a theory that Jenkins’s
violent and chaotic background led him to murder Tammy
Hogeland. Regarding the later theory, the Court finds it
significant that the only documented act of violence
committed by Jenkins was the murder of Tammy Hogeland.
Based on all of the foregoing, the Court finds that Jenkins
has proven neither deficient performance nor prejudice
related to the failure to call Sharon Seal as a witness.
....
The Court also finds that Betty DeLavega, Jenkins’s
second cousin, was not a credible witness and was biased.
Ms. DeLavega had only seen Jenkins on two occasions in
her life. Once when Jenkins and his family visited her in
Indiana and once when she went to California to visit.
Jenkins was very young when he came to Ms. DeLavega’s
home, and he was 11 or 12 when she visited in California.
Ms. DeLavega testified that she stayed in the Jenkins home
for five months with her husband and her four children.
Ms. DeLavega informed the Court that when Jenkins
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and his family visited her in Indiana, Jenkins was not beaten
by his stepfather because she “wouldn’t have stood for
that.” However, Ms. DeLavega testified that Jenkins’s
stepfather was cruel to both Jenkins and his brother
Michael, and specifically recounted an incident where she
claimed that Jenkins’s stepfather forced Jenkins to eat his
own feces, in front of her and her family, out of his
underwear with a spoon. Although claiming to be horrified
at seeing this, Ms. DeLavega did nothing. She did not call
the authorities and she and her four children continued to
live in the Jenkins’s home. Ms. DeLavega and Jenkins’s
brother, Michael, were the only two persons to recount that
Jenkins was forced to eat his own feces with a spoon.
Ms. DeLavega also testified, demonstrating her bias,
that she did not believe that Jenkins could hurt anybody and
that he was innocent of the crime for which he was
convicted. Ms. DeLavega testified that it would be a terrible
thing for Jenkins to be executed. She also stated that she
was asked to come and testify at the evidentiary hearing by
Jenkins’s grandmother, Doris Wagoner, “to get him off
death row.”
The Court finds that Ms. DeLavega basically had no
knowledge of any long-term abuse Jenkins suffered because
she had only seen Jenkins on two very brief occasions in her
life. At the time of her testimony, she had not seen Jenkins
since he was 11 or 12 years old. The Court finds it to be
beyond belief that Ms. DeLavega could witness Jenkins
being forced to eat his own feces with a spoon and do
nothing. It is also beyond belief that she would remain in the
home with her four children after witnessing such a
horrifying event. After observing Ms. DeLavega and
listening to her testimony, the Court finds her to be a biased
and incredible witness, giving her testimony no weight.
The petitioner’s grandmother, Doris Wagoner, was
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also biased and incredible witness. She testified that Jenkins
was ‘slow’ as an infant and could not sit up at the age of
four months. Mrs. Wagoner was not offered as an expert in
early childhood development and this Court does not accept
her as such. She testified that she never witnessed any
physical abuse and offered nothing which would establish
“that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S.
at 695.
Most importantly, Mrs. Wagoner testified that she
was not available to testify at the penalty phase of Jenkins’s
trial. . . . Trial counsel can not be labeled ineffective for
failure to present the testimony of a witness who, by her
own admission, was unavailable and uninterested. Nothing
in the testimony of Doris Wagoner mitigated Jenkins’s
crime.
(C.R. 325-35.)
Initially, Jenkins takes issue with the credibility choices that the
circuit court made based on the witnesses’ testimony at the Rule 32
hearing.
The resolution of . . . factual issue[s] required the trial judge
to weigh the credibility of the witnesses. His determination
is entitled to great weight on appeal. . . . “When there is
conflicting testimony as to a factual matter . . ., the question
of the credibility of the witnesses is within the sound
discretion of the trier of fact. His factual determinations are
entitled to great weight and will not be disturbed unless
clearly contrary to the evidence.”
Calhoun v. State, 460 So.2d 268, 269-70 (Ala.Crim.App. 1984) (quoting
State v. Klar, 400 So.2d 610, 613 (La. 1981)).
Jenkins’s grandmother, Doris Wagoner, testified that she did talk
94
to Scofield about representing her grandson and to several other people,
whom she could not identify, and that she was in constant communication
with Jenkins before his trial. She also testified: “Mark never had a chance.
He didn’t have a home life. He was badly mistreated and then he left. I
was told by others - this is hearsay. I didn’t see it.” (R. 254.) Wagoner
testified that she didn’t come to his trial because, “I don’t know why. I’m
a very busy person - and still today even at my age. I don’t know why.
When the attorney started asking me for money, I didn’t feel I could come
down here and hire attorneys and this sort of thing.” (R. 259.) Last, on
cross-examination, Wagoner testified that Jenkins’s mother did not “want
anything to do with Mark.” (R. 261.) Her testimony shows that she did
not witness any abuse. Wagoner also testified that she was not available
to testify at Jenkins’s trial.
Michael Jenkins, Jenkins’s stepbrother, testified that Jenkins was
frequently beaten by his stepfather. When questioned on
cross-examination as to whether Jenkins had communicated with him
about possibly testifying at his trial, the following occurred:
Q [Assistant attorney general]: In your earlier testimony-I’m
just trying to clarify some things. You seemed to indicate in
a response to [Jenkins’s attorney’s] question that you
thought Mark wrote you about testifying at his trial. Is that
correct or are you not sure?
A [Michael Jenkins]: Before we go any further, I would like
to clarify for the record, if I can. I had a severe accident in
1983 and I have a problem thinking. That is why I can’t
remember. I had a cracked skull in three places. I think he
did, yes.
Q: And specifically one of his letters mentioned that he
might need you to testify in his trial?
A: Yes.
Q: From that, would it appear you were back in contact
95
before he actually went to trial?
A: You are confusing me.
Q: You do recall you got a letter from him.
A: Yes.
Q: Were you still in California at the time?
A: Yes.
Q: You do recall there was some reference to you testifying
at this trial?
A: From Mark?
Q: Yes.
A: Yes.
(R. 161-62.) From the above-quoted portion of Michael Jenkins’s
testimony it is clear why the circuit court gave Michael Jenkins’s
testimony little weight.
Jenkins’s cousin, Tammy Pitts, testified that Jenkins had been
abused and neglected 24 hours a day, 7 days a week and that out of the
20 years that she lived with Jenkins she reported Jenkins’s situation to
Child Protective Services on two occasions. Pitts stated that the first time
they investigated and took no action and that the second time they did not
come to the house.
Betty DeLavega, Jenkins’s cousin, testified; however, she stated
that she had been around Jenkins on only two occasions and that she had
not seen him since he was 11 years old. The following occurred on
cross-examination:
96
Q [Assistant attorney general]: How did you come to be
here today? Were you contacted by [Jenkins’s attorney]?
A: My aunt contacted me.
Q: Which aunt?
A: Doris, his grandmother.
Q: Doris Wagoner.
A: Yes.
Q: What did she tell you?
A: She told me what had happened and that Mark was on
death row.
Q: So you didn’t even know he had been convicted of
anything?
A: No.
Q: What did she say - “He was on death row and what”
A: They was trying to get a hearing.
Q: For what reason?
A: To get him off death row.
(R. 241-42.) This witness had had very limited contact with Jenkins and
could not testify about any extended and significant abuse he might have
suffered.
Sharon Seal, a friend of Jenkins’s, testified that Jenkins was very
generous and that he had helped her family move from California to
97
Alabama. Seal also testified that Jenkins’s attorneys did not contact her
about her being a possible witness in the case. However, on
cross-examination the following occurred:
Q [Assistant attorney general]: Did you attend the trial of
Mr. Jenkins?
A [Seal]: I was told by Mark’s lawyers that we were not
allowed in the courthouse because we might be potential
witnesses.
Q: So you were a potential witness?
A: He said we might be called on as potential witnesses.
Q: So he did talk to you about being a witness in this case?
A: To me directly, no.
Q: You knew there was a possibility you might be called as
a witness?
A: Correct.
Q: Who knew Mr. Jenkins better-you or your husband?
A: My husband.
Q: And your husband testified at the sentencing phase?
A: Yes.
(R. 63-64.) Seal’s husband did testify at the penalty phase of Jenkins’s
trial. His testimony was virtually identical to Sharon Seal’s testimony at
the Rule 32 hearing. FN.15.
FN.15. Sharon and Lonnie Seal are described in the
98
presentence report as “part time local pastors for the United
Methodist Church.”
The trial court made a finding after listening to and viewing all of
Jenkins’s witnesses that none of the witnesses was credible and that they
had exaggerated the level of abuse that Jenkins had been exposed to when
he was child. This was based on contradictions in the witnesses’ own
testimony and on the fact no medical or school records memorialized such
abuse. The circuit court noted that the school records were very detailed
and even referenced that Jenkins had suffered from a rash and gingivitis
but the circuit court found it hard to believe that the records made no
reference to any injuries that Jenkins had sustained as a child. The circuit
court’s ruling is supported by the testimony at the Rule 32 hearing and is
consistent with the findings made by the probation officer in the
presentence report. The probation officer described the level of abuse as
“moderate.”
“A defense attorney is not required to investigate all
leads, however, and ‘there is no per se rule that evidence of
a criminal defendant’s trouble childhood must always be
presented as mitigating evidence in the penalty phase of a
capital case.’” Bolender [v. Singletary ], 16 F.3d [1547,] at
1557 [ (11th Cir. 1994) ] (footnote omitted)(quoting Devier
v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), cert. denied,
[513] U.S. [1161], 115 S.Ct. 1125, 130 L.Ed.2d 1087
(1995)). “Indeed, ‘[c]ounsel has no absolute duty to present
mitigating character evidence at all, and trial counsel’s
failure to present mitigating evidence is not per se
ineffective assistance of counsel.’” Bolender, 16 F.3d at
1557 (citations omitted).
Marek v. Singletary, 62 F.3d at 1300.
Also, many courts have observed that evidence of child abuse can
be a “double-edged sword” because it cuts both ways; therefore, it may
be a strategic choice not to present this type of evidence. See Kitchens v.
Johnson, 190 F.3d 698, 705 (5th Cir. 1999) (evidence of childhood abuse
99
and alcoholism may be more effective than a plea for mercy, “[y]et, it is
equally possible that such evidence would have only served to inflame the
jury”); Stanley v. Zant, 697 F.2d 955, 969 (11th Cir. 1983) (“[M]itigation
may be in the eye of the beholder.”); United States ex rel. Cloutier v.
Mote, (No. 00-C-5476, January 8, 2003) (N.D.Ill. 2003) (not published
in F.Supp.2d) (“This court recognizes that some mitigation testimony
contains material that a jury may consider as aggravating instead of
mitigating.”); Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002)
(evidence of brain injury, abusive childhood, and drug and alcohol abuse
was “double edged” because it would support a finding of future
dangerousness). See also cases upholding the failure to present evidence
of child abuse given the horrific facts surrounding the murder. See
Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001)( “Considering
. . . history in light of the horrific nature of this offense, a reasonable court
could conclude that there was no substantial likelihood that the outcome
of the punishment phase would have been altered by evidence that [the
defendant] suffered organic brain damage.”); Callins v. Collins, 998 F.2d
269, 279 (5th Cir. 1993) (“Some evidence of [the defendant’s] good
character already had been admitted through his mother; the wantonness
of the murder and [the defendant’s] violent escapades after it, however,
swamped this evidence, and we believe it equally would have
overwhelmed the minimal mitigating evidence that [the defendant] now
argues should have been introduced at the capital sentencing phase.”);
People v. Rodriguez, 914 P.2d 230, 296 (Colo. 1996) (“Given the brutal
circumstances surrounding the murder of [the victim] and the
overwhelming evidence of aggravation against [the defendant], we are not
persuaded that trial counsel’s failure to present the proposed mitigating
evidence of child abuse materially affected the imposition of [the
defendant’s] death sentence.”). See also Rompilla v. Horn, 355 F.3d 233
(3d Cir. 2004); Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003); Lovitt v.
Warden, 266 Va. 216, 585 S.E.2d 801 (2003).
It is apparent from the record of Jenkins’s trial that Scofield
thoroughly prepared for the guilt phase. However, Downey was in charge
of the penalty phase. Because we do not have the benefit of Downey’s
testimony as to what occurred and why, we are left with examining the
record of Jenkins’s trial.
100
The record shows that in his opening statement in the penalty phase
Downey detailed all of the statutory mitigating circumstances and
informed the jury that it was not limited to considering the mitigating
circumstances contained in the statute but that it could consider any
mitigating evidence that had been presented. The trial court also
instructed the jury that any evidence presented in the guilt phase could be
considered in mitigation. One witness was called to testify in Jenkins’s
behalf at the penalty phase. FN.17. Lonnie Seal testified that he traveled
from California to Alabama with Jenkins, that Jenkins was a very giving
and generous person, that Jenkins lived with his family when they arrived
in Alabama, that Jenkins obtained work before he did and that he would
give his entire paycheck to Seal’s family, and that Jenkins was very
helpful with Seal’s children. FN.18. In closing, Downey argued that
according to his interpretation of the Bible the jury should be cautious
when sentencing Jenkins because his conviction was based solely on
circumstantial evidence. The record shows that counsel argued residual
doubt and Jenkins’s good character at the penalty phase.
FN.17. It appears from a review of the record that another
witness, who is not identified, was also scheduled to testify;
however, this witness did not. Neither the identity of this
witness nor the reason for this witness’s not testifying is
contained in the trial record. Nor was Scofield questioned
about this at the Rule 32 hearing.
However, the record of the Rule 32 hearing indicates
that Jenkins had been talking with his grandmother about
testifying at his trial but Jenkins later told his attorneys that
she was not going to be able to attend the trial. (R. 396)
FN.18. This was evidence that humanized Jenkins evidence that has been classified as mitigation. See Emerson
v. Gramley, 883 F. Supp. 225, 245 (N.D. Ill. 1995).
As we noted above, great effort was expended in preparing for the
guilt phase.
101
A lawyer’s time and effort in preparing to defend his client
in the guilt phase of a capital case continues to count at the
sentencing phase. Creating lingering doubt has been
recognized as an effective strategy for avoiding the death
penalty. We have written about it. See, e.g., Stewart v.
Dugger, 877 F.2d 851, 855-56 (11th Cir. 1989). In addition,
a comprehensive study on the opinions of jurors in capital
cases concluded:
“Residual doubt” over the defendant’s guilt is
the most powerful ‘mitigating’ fact. - [The
study] suggests that the best thing a capital
defendant can do to improve his chances of
receiving a life sentence has nothing to do with
mitigating evidence strictly speaking. The best
thing he can do, all else being equal, is to raise
doubt about his guilt.
Stephen P. Garvey, Aggravation and Mitigation in Capital
Cases: What do Jurors Think?, 98 Colum.L.Rev. 1538,
1563 (1998) (footnotes omitted); see William S. Geimer &
Jonathan Amsterdam, Why Jurors Vote Life or Death:
Operative Factors in Ten Florida Death Penalty Cases, 15
Am.J.Crim.L. 1, 28 (1988) (“[t]he existence of some degree
of doubt about the guilt of the accused was the most often
recurring explanatory factor in the life recommendation
cases studied.”); see also Jennifer Treadway, Note,
“Residual Doubt” in Capital Sentencing: No Doubt it is an
Appropriate Mitigating Factor, 43 Case W. Res.L.Rev. 215
(1992). Furthermore, the American Law Institute, in a
proposed model penal code, similarly recognized the
importance of residual doubt in sentencing by including
residual doubt as a mitigating circumstance. So, the efforts
of Tarver’s lawyer, during trial and sentencing, to create
doubt about Tarver’s guilt may not only have represented an
adequate performance, but evidenced the most effective
performance in defense to the death penalty.
102
Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999).
Evidence was presented at the guilt phase that Jenkins had been
drinking at the time of the murders. (One witness testified that she saw
Jenkins drink three beers and four quarts of wine on the night Hogeland
was murdered.) In closing argument in the guilt phase, Scofield vigorously
argued that based on the amount of alcohol that Jenkins had consumed
before the murder it was impossible for Jenkins to have formed the intent
to kill. He argued that Jenkins left a friend’s house between 1:30 a.m. and
2:00 a.m., that when he left the house he fell down a flight of stairs, got
into an old car, and backed into another car. He argued that Jenkins would
have had to go to the Rocky Ridge Shell gasoline station, the location
where the red Mazda automobile that was linked to Hogeland’s murder
had been stolen, and get to the Omelet Shoppe by 2:00 a.m. FN.19. Also,
there was evidence presented that Jenkins was 21 years of age at the time
of the murder. (R. 1148.)
FN.19. Scofield testified that his approach to this case was
to create a reasonable doubt in the minds of the jurors.
The trial court in its sentencing order found that Jenkins had no
significant history of prior criminal activity - he had two misdemeanor
convictions - that he was 21 at the time of the murder, and that he did
consume alcohol at the time of the murder although he was not so
impaired that he could not appreciate the criminality of his conduct.
FN.20. The trial court also considered the mitigation evidence of
Jenkins’s childhood contained in the presentence report and the
presentence memorandum that was prepared by Scofield; however, it
gave this evidence little weight. The trial court found that the aggravating
circumstances - that the murder was committed during the course of a
robbery and a kidnapping - outweighed the mitigating circumstances and
warranted a sentence of death.
FN.20. The trial court specifically stated the following
regarding Jenkins’s alcohol consumption before the murder:
The Court does find that there was evidence
103
that the defendant, at some time during the
night of April 17 or morning of April 18 had
consumed alcoholic beverage, but the Court
does not find that at the time of the
commission of the capital offense the capacity
of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the
requirements of law was substantially
impaired. The defendant’s conduct, at
approximately 5:00 a.m. on [April 18] at the
service station, and his conversation with the
two . . . witnesses and his later recollection of
the events that occurred surrounding the
commission of the offense, would indicate that
the defendant’s capacity to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law was not
substantially impaired to the extent as required
in this mitigating circumstance.
We believe that Downey’s decision to concentrate on reasonable
doubt and to portray Jenkins as a good person was reasonable under the
circumstances. Moreover, the evidence that Jenkins submits should have
been introduced - his abusive childhood and the fact that that abuse made
him a violent adult - would have been in direct conflict with the evidence
presented. Every witness questioned about Jenkins’s demeanor at the
Rule 32 hearing stated that Jenkins was meek and mild. We cannot say
that counsel’s conduct fell outside the wide range of professional conduct.
See Strickland.
Last, Jenkins cannot show any prejudice. As the United States
Supreme Court recently stated in Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003), when reviewing a claim of
ineffective assistance of counsel at the penalty phase of a capital murder
trial:
In Strickland [v. Washington, 466 U.S. 668 (1984)], we
104
made clear that, to establish prejudice, a “defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. In assessing
prejudice, we reweigh the evidence in aggravation against
the totality of available mitigating evidence.
539 U.S. at 534, 123 S.Ct. at 2542.
The circuit court stated the following in its order denying relief:
The Court notes that for the reasons that will follow,
the evidence presented at the hearing would not have
affected the sentence this Court would have imposed on
Jenkins. The aggravating circumstances clearly outweighed
any mitigation caused by Jenkins’s “abusive childhood,”
below average intelligence, lack of criminal history, and his
age. Jenkins kidnapped, robbed, and brutally murdered
Tammy Hogeland. He then disposed of her nude body on
the side of the interstate, leaving her to decompose beyond
recognition. Death was the appropriate punishment in this
case.
(C.R. 326.) We, like the circuit court, have independently reweighed the
alleged mitigating evidence against the aggravating circumstances that
were proven by the State. Given the aggravating circumstances that were
proven by the State and the facts surrounding Hogeland’s murder, we,
like the circuit court, are confident that death was the appropriate
punishment for Jenkins’s actions.
Jenkins, 972 So. 2d at 137-48 (alterations in original)(footnote omitted).
a.
Childhood and background
The majority of Jenkins’s claims of ineffective assistance of counsel in the
105
penalty phase of his trial concern counsel’s failure to investigate, present and/or
develop evidence regarding his childhood and background. Specifically, Jenkins argues
that counsel failed to investigate, present and/or develop evidence that Jenkins had an
impoverished childhood; was developmentally impaired since birth; was profoundly
rejected as a child; was physically abused and scapegoated; was sexually abused; was
chronically isolated as a child; was degraded and humiliated as a child; suffered
childhood trauma that impaired his development; had parents who were drug abusers;
experienced extreme neglect; was mentally retarded, learning disabled, and had
significant other cognitive deficits; suffered academic failures despite his diligent
efforts; was forced to become homeless as a child and turned to drugs to numb his pain;
lacked support and appropriate, positive influences; and was severely disturbed and
depressed his entire life. He further alleges that counsel failed to investigate and present
evidence that the crime was a total aberration; failed to collect and present historical
records, including birth, education, juvenile court, social services, health, psychiatric,
and incarceration records, supporting the existence of numerous mitigating factors,
including those listed above; failed to introduce expert testimony; and failed to develop
or present any theory of mitigation, much less an adequate one.
The Alabama Court of Criminal Appeals thoroughly addressed these claims,
concluding that counsel’s failure to present the evidence to the jury in the penalty phase
106
of the trial did not fall outside the wide range of professional conduct and that Jenkins
failed to establish that he suffered prejudice as a result of counsel’s failure to present
the evidence. Because Jenkins has failed to show that he was prejudiced by counsel’s
failure to present this evidence in the penalty phase, the court foregoes analysis of the
Strickland performance prong. This approach was suggested by the Supreme Court in
Strickland and has been followed by the Eleventh Circuit. As explained in Lee v.
Comm’r, Ala. Dept. of Corrections:
In this case, we need not reach the performance prong because we are so
readily convinced Lee has not shown the requisite prejudice. Strickland,
466 U.S. at 697, 104 S.Ct. at 2069 (“[A] court need not determine
whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.”); Frazier v. Bouchard, 661 F.3d 519, 531-32 (11th Cir.
2011) (stating we “may decline to reach the performance prong of the
ineffective assistance test if convinced that the prejudice prong cannot be
satisfied” (internal quotation marks omitted)); Windom v. Sec’y, Dep’t of
Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (per curiam); Hall v. Head,
310 F.3d 683, 699 (11th Cir. 2002). Indeed, the Supreme Court has said
that “[t]he object of an ineffectiveness claim is not to grade counsel’s
performance” and consequently, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” Strickland,
466 U.S. at 697, 104 S.Ct. at 2069.
Lee, 726 F.3d 1172, 1193 (11th Cir. 2013).
To establish prejudice, Jenkins must show that there is a reasonable probability
that, but for counsel’s failure to present this evidence to the jury in the penalty phase,
107
he would have received a different sentence. See Porter v. McCollum, 558 U.S. 30, 41
(2009). As the Alabama Court of Criminal Appeals noted, “in assessing prejudice, we
reweigh the evidence in aggravation against the totality of available mitigation
evidence.” Jenkins, 972 So. 2d at 148. This includes evidence presented in the post
conviction proceedings, in addition to the trial.
The defense theory at trial was to create reasonable doubt in the minds of the
jurors. The defense argued that given the amount of alcohol Jenkins consumed before
the murder, he lacked the intent to kidnap, rob or kill the victim, and that given the
short timeline of events that took place prior to the crime, it would have been difficult,
if not impossible, for Jenkins to have committed the crimes. (See R. Vol. 18, Tab 12
at 1561-1599; R. Vol. 9 at 1600-03).25
The defense called only one witness in the penalty phase, Jenkins’s friend Lonnie
Seal. Seal testified that Jenkins was a good friend, who was helpful, generous, and
kind, and that he trusted Jenkins with his wife and baby; evidence tending to humanize
Jenkins and portray him in a sympathetic light. (R. Vol. 9, Tab 19 at 1718-27). Jenkins
contends that counsel should have introduced evidence of Jenkins’s deprived, abusive
childhood, and mental deficiencies. However, this evidence could have been a “double25
Jenkins’s trial attorney, Doug Scofield, testified at the Rule 32 evidentiary hearing that his
approach to the case was to create a reasonable doubt in the minds of the jury with regard to
identification and opportunity. (Rule 32 R. Vol. 21 at 307, 380-82).
108
edged sword,” undermining defense counsel’s residual doubt theory, by portraying
Jenkins as someone more likely to have committed the crimes due to his less than ideal
upbringing. Further, the Eleventh Circuit Court of Appeals has noted that “residual
doubt is perhaps the most effective strategy to employ at sentencing.” Chandler v.
United States, 218 F.3d 1305, 1320 n.28 (citing Tarver v. Hopper, 169 F.3d 710,
715-16 (11th Cir. 1999)).
[F]ocusing on acquittal at trial and then on residual doubt at sentencing
(instead of other forms of mitigation) can be reasonable. Especially
when—as in this case—the evidence of guilt was not overwhelming, we
expect that petitioners can rarely (if ever) prove a lawyer to be ineffective
for relying on this seemingly reasonable strategy to defend his client.
Id. at 1320 (citing Tarver, 159 F.3d at 715-16).
In accordance with Strickland, the Alabama Court of Criminal Appeals
“independently reweighed the alleged mitigating evidence against the aggravating
circumstances that were proven by the State.” Jenkins, 972 So. 2d at 148. The state
court found that “[g]iven the aggravating circumstances that were proven by the State
and the facts surrounding Hogeland’s murder, we, like the circuit court, are confident
that death was the appropriate punishment for Jenkins’s actions.” Id. The state
appellate court’s finding that Jenkins was not prejudiced by counsel’s failure to
investigate and present this evidence in the penalty phase of the trial is not contrary to
or an unreasonable application of Strickland, nor was it based upon an unreasonable
109
determination of the facts.
b.
Age at the time of the offense; lack of significant
criminal history; and severe intoxication
Jenkins faults counsel for failing to present to the jury several “simple facts” that
he claims would have established “compelling statutorily mitigating” factors under
Alabama law: his age at the time of the offense; his lack of significant criminal history;
and his “severe” intoxication on the night of the offense. (Doc. 48 at 46-47). Alabama
law provides:
Mitigating circumstances shall include, but not be limited to, the
following:
(1) The defendant has no significant history of prior criminal activity;
(2) The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance;
(3) The victim was a participant in the defendant’s conduct or consented
to it;
(4) The defendant was an accomplice in the capital offense committed by
another person and his participation was relatively minor;
(5) The defendant acted under extreme duress or under the substantial
domination of another person;
(6) The capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired; and
(7) The age of the defendant at the time of the crime.
110
Ala. Code § 13A-5-51.
Jenkins was twenty-one years old in April, 1989, when he committed the
murder.26 Jenkins maintains that instead of preparing to prove this mitigating factor at
the penalty phase of the trial, “counsel called a single witness who he asked to guess
Mr. Jenkins’s age.” (Doc. 12 at 47). He adds that “[u]nfortunately for Mr. Jenkins, the
witness guessed wrong, stating ‘I guess twenty-five,’ leaving the jury with the
erroneous impression that he was significantly older and thus, negating any benefit of
this statutory mitigating circumstance.” (Id.).27 Jenkins concludes that the “evidence
from the Rule 32 hearing shows that counsel had not taken the minimal step of
26
Jenkins was born on September 13, 1967. (Rule 32 C.R. Vol 19 at 474).
27
Mr. Downey questioned the witness, Lonnie Seal, as follows:
Q. Mr. Seal, let me ask you one more question. Do you know how old Mark is at this
time?
A. The same age as my wife. I’m not sure.
MR. DAVIS: I object to any other speculation.
A. I guess twenty-five.
THE COURT: How much?
Q. Well, you just don’t know how old?
A. No, sir, I don’t know how old he is.
(R. Vol. 9, Tab 15 at 1726-27).
111
adequately preparing this witness to testify.”28 (Doc. 12 at 47).
Jenkins further alleges that despite the fact that he “did not have a significant
history of prior criminal conduct” (doc. 12 at 48), counsel failed to present this “simple
fact and argument that would have established another statutorily mitigating factor.”
(Doc. 48 at 47). Jenkins argues that counsel admitted at the Rule 32 hearing that this
potentially mitigating circumstance was not presented to the jury, and counsel’s failure
28
Jenkins cites page 327 of the transcript of the Rule 32 hearing in support of his conclusion. On that
page, the following transpired between Mr. Scofield and Jenkins’s Rule 32 counsel:
A. Mr. Downey approached me and suggested that I might wish to examine Lonnie
Seals during the sentencing phase. He stated, “You probably know more about what
he would say. Why don’t you just put him on the stand?”
Q. To your knowledge, did Mr. Downey ever interview Lonnie Seals prior to that
date?
A. It is my understanding at that time, that he had not. I responded to him, when he
suggested that, I said, “The only reason - [THE STATE]: I object, Your Honor. There is no question.
THE COURT: Wait for a question.
Q. What was your position with regard to Mr. Downey’s request that you do the
direct examination?
A. I told him that he needed to put Mr. Seals on. That is what we agreed to – he
would be handling that phase. I also instructed him and what I said was, “The only
reason that I know more about what he is going to say is because I have taken the
time to talk to him. Go downstairs and talk to him, interview him, and get him ready
to put on.”
(Rule 32 R. Vol. 21 at 327-28).
112
to investigate Jenkins’s criminal record was not strategic.29
Finally, Jenkins contends that counsel “for the third time failed at presenting to
the jury another simple fact and argument that would have established another
compelling statutorily mitigating factor under Alabama law – Mr. Jenkins’s intoxication
at the time of the crime.” (Doc. 48 at 48). Jenkins claims that “[w]hile evidence of Mr.
Jenkins’s severe intoxication was introduced during the guilt phase of his capital trial
– and provided the basis for trial counsel’s inconsistent closing argument – counsel
failed to utilize this evidence as a basis for saving their client during the penalty phase.”
(Doc. 12 at 49).
The state maintains that when Jenkins raised these claims on appeal from the
denial of his Rule 32 petition, the Alabama Court of Criminal Appeals denied them
claims on the merits. (Doc. 20 at 36-41). It further asserts that Jenkins cannot show that
the state court’s decision resulted in a decision that was contrary to or involved an
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 hearing. (Id.).
Jenkins disputes this contention. First, he argues that the state court failed to
29
At the Rule 32 evidentiary hearing, Scofield testified that his failure to call witnesses at the penalty
phase of trial or to seek records was not strategic. (Rule 32 R. Vol. 21 at 323).
113
adjudicate the claims concerning his age and lack of prior criminal history. (Doc. 48 at
46-48). With respect to the claim concerning counsel’s failure to present evidence of
his age at the time of the crime, Jenkins argues that “the state court simply noted that
there was evidence at the Rule 32 evidentiary hearing that Mr. Jenkins was twenty-one
years old at the time of the crime, and failed to mention the relevance of that fact again
or otherwise adjudicate the claim. Jenkins II, 972 So. 2d at 147).” (Doc. 48 at 47).
Jenkins is incorrect. In context, the quote Jenkins cites reads as follows:
Evidence was presented at the guilt phase that Jenkins had been
drinking at the time of the murders. (One witness testified that she saw
Jenkins drink three beers and four quarts of wine on the night Hogeland
was murdered.) In closing argument in the guilt phase, Scofield vigorously
argued that based on the amount of alcohol that Jenkins had consumed
before the murder it was impossible for Jenkins to have formed the intent
to kill. He argued that Jenkins left a friend’s house between 1:30 a.m. and
2:00 a.m., that when he left the house he fell down a flight of stairs, got
into an old car, and backed into another car. He argued that Jenkins would
have had to go to the Rocky Ridge Shell gasoline station, the location
where the red Mazda automobile that was linked to Hogeland’s murder
had been stolen, and get to the Omelet Shoppe by 2:00 a.m. FN.19. Also,
there was evidence presented that Jenkins was 21 years of age at the time
of the murder. (R. 1148.)
FN.19. Scofield testified that his approach to this case was
to create a reasonable doubt in the minds of the jurors.
Jenkins, 972 So. 2d at 146-47. The Alabama Court of Criminal Appeals was
referencing the evidence presented at the guilt phase of the trial, not at the Rule 32
evidentiary hearing. Further, appellate court cited page 1148 of the trial transcript in
114
support of its statement that “there was evidence presented that Jenkins was 21 years
of age at the time of the murder.” On that page, Sergeant Mark White of the Los
Angeles County Sheriff’s department, who interviewed Jenkins while he was
incarcerated in the Los Angeles County jail, read the following from the notes he took
during the interview: “The suspect is Mark Allen Jenkins, male, white, 21, d/o/b of
9/13/67 in custody.” (R. Vol. 6 at 1148). As discussed more fully below, the Alabama
Court of Criminal Appeals clearly addressed the claim that counsel were ineffective for
failing to argue Jenkins’s age as a mitigating factor in the penalty phase of the trial.
Jenkins further argues, with respect to his claim that counsel failed to present
evidence that he lacked a significant criminal history, that instead of adjudicating this
claim on the merits, the Alabama Court of Criminal Appeals “simply noted that the trial
court ‘in its sentencing,’ found that Mr. Jenkins had no significant history of prior
criminal activity,” but “failed to mention the relevance of that fact again or otherwise
adjudicate the claim.” (Doc. 48 at 47). However, a review of the opinion of the
Alabama Court of Criminal Appeals, as set out below, reveals that the court did in fact
adjudicate this claim.
Finally, Jenkins argues that the state court’s adjudication of his claim that
counsel failed to present evidence of his “severe intoxication” to the jury at the penalty
phase, resulted in a decision that was contrary to, and involved an unreasonable
115
application of, clearly established Federal law, and that it was based upon an
unreasonable determination of the facts. (Doc. 12 at 49).
Both the Rule 32 court and the Alabama Court of Criminal Appeals addressed
Jenkins’s claims concerning counsel’s failure to argue these statutory mitigating
circumstances, and found them to be without merit. (Rule 32 C.R. Vol. 45, Tab 77 at
341-42); Jenkins, 972 So. 2d at 145-48. In denying the claims, the Alabama Court of
Criminal Appeals found:
It is apparent from the record of Jenkins’s trial that Scofield
thoroughly prepared for the guilt phase. However, Downey was in charge
of the penalty phase. Because we do not have the benefit of Downey’s
testimony as to what occurred and why, we are left with examining the
record of Jenkins’s trial.
The record shows that in his opening statement in the penalty phase
Downey detailed all of the statutory mitigating circumstances and
informed the jury that it was not limited to considering the mitigating
circumstances contained in the statute but that it could consider any
mitigating evidence that had been presented. The trial court also
instructed the jury that any evidence presented in the guilt phase could be
considered in mitigation. One witness was called to testify in Jenkins’s
behalf at the penalty phase. FN.17. Lonnie Seal testified that he traveled
from California to Alabama with Jenkins, that Jenkins was a very giving
and generous person, that Jenkins lived with his family when they arrived
in Alabama, that Jenkins obtained work before he did and that he would
give his entire paycheck to Seal’s family, and that Jenkins was very
helpful with Seal’s children. FN.18. In closing, Downey argued that
according to his interpretation of the Bible the jury should be cautious
when sentencing Jenkins because his conviction was based solely on
circumstantial evidence. The record shows that counsel argued residual
doubt and Jenkins’s good character at the penalty phase.
116
FN.17. It appears from a review of the record that another
witness, who is not identified, was also scheduled to testify;
however, this witness did not. Neither the identity of this
witness nor the reason for this witness’s not testifying is
contained in the trial record. Nor was Scofield questioned
about this at the Rule 32 hearing.
However, the record of the Rule 32 hearing indicates
that Jenkins had been talking with his grandmother about
testifying at his trial but Jenkins later told his attorneys that
she was not going to be able to attend the trial. (R. 396)
FN.18. This was evidence that humanized Jenkins evidence that has been classified as mitigation. See Emerson
v. Gramley, 883 F. Supp. 225, 245 (N.D. Ill. 1995).
As we noted above, great effort was expended in preparing for the
guilt phase.
A lawyer’s time and effort in preparing to defend his client
in the guilt phase of a capital case continues to count at the
sentencing phase. Creating lingering doubt has been
recognized as an effective strategy for avoiding the death
penalty. We have written about it. See, e.g., Stewart v.
Dugger, 877 F.2d 851, 855-56 (11th Cir. 1989). In addition,
a comprehensive study on the opinions of jurors in capital
cases concluded:
“Residual doubt” over the defendant’s guilt is
the most powerful ‘mitigating’ fact. - [The
study] suggests that the best thing a capital
defendant can do to improve his chances of
receiving a life sentence has nothing to do with
mitigating evidence strictly speaking. The best
thing he can do, all else being equal, is to raise
doubt about his guilt.
117
Stephen P. Garvey, Aggravation and Mitigation in Capital
Cases: What do Jurors Think?, 98 Colum.L.Rev. 1538,
1563 (1998) (footnotes omitted); see William S. Geimer &
Jonathan Amsterdam, Why Jurors Vote Life or Death:
Operative Factors in Ten Florida Death Penalty Cases, 15
Am.J.Crim.L. 1, 28 (1988) (“[t]he existence of some degree
of doubt about the guilt of the accused was the most often
recurring explanatory factor in the life recommendation
cases studied.”); see also Jennifer Treadway, Note,
“Residual Doubt” in Capital Sentencing: No Doubt it is an
Appropriate Mitigating Factor, 43 Case W. Res.L.Rev. 215
(1992). Furthermore, the American Law Institute, in a
proposed model penal code, similarly recognized the
importance of residual doubt in sentencing by including
residual doubt as a mitigating circumstance. So, the efforts
of Tarver’s lawyer, during trial and sentencing, to create
doubt about Tarver’s guilt may not only have represented an
adequate performance, but evidenced the most effective
performance in defense to the death penalty.
Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999).
Evidence was presented at the guilt phase that Jenkins had been
drinking at the time of the murders. (One witness testified that she saw
Jenkins drink three beers and four quarts of wine on the night Hogeland
was murdered.) In closing argument in the guilt phase, Scofield vigorously
argued that based on the amount of alcohol that Jenkins had consumed
before the murder it was impossible for Jenkins to have formed the intent
to kill. He argued that Jenkins left a friend’s house between 1:30 a.m. and
2:00 a.m., that when he left the house he fell down a flight of stairs, got
into an old car, and backed into another car. He argued that Jenkins would
have had to go to the Rocky Ridge Shell gasoline station, the location
where the red Mazda automobile that was linked to Hogeland’s murder
had been stolen, and get to the Omelet Shoppe by 2:00 a.m. FN.19. Also,
there was evidence presented that Jenkins was 21 years of age at the time
of the murder. (R. 1148.)
118
FN.19. Scofield testified that his approach to this case was
to create a reasonable doubt in the minds of the jurors.
The trial court in its sentencing order found that Jenkins had no
significant history of prior criminal activity - he had two misdemeanor
convictions - that he was 21 at the time of the murder, and that he did
consume alcohol at the time of the murder although he was not so
impaired that he could not appreciate the criminality of his conduct.
FN.20. The trial court also considered the mitigation evidence of
Jenkins’s childhood contained in the presentence report and the
presentence memorandum that was prepared by Scofield; however, it
gave this evidence little weight. The trial court found that the aggravating
circumstances - that the murder was committed during the course of a
robbery and a kidnapping - outweighed the mitigating circumstances and
warranted a sentence of death.
FN.20. The trial court specifically stated the following
regarding Jenkins’s alcohol consumption before the murder:
The Court does find that there was evidence
that the defendant, at some time during the
night of April 17 or morning of April 18 had
consumed alcoholic beverage, but the Court
does not find that at the time of the
commission of the capital offense the capacity
of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the
requirements of law was substantially
impaired. The defendant’s conduct, at
approximately 5:00 a.m. on [April 18] at the
service station, and his conversation with the
two . . . witnesses and his later recollection of
the events that occurred surrounding the
commission of the offense, would indicate that
the defendant’s capacity to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law was not
119
substantially impaired to the extent as required
in this mitigating circumstance.
We believe that Downey’s decision to concentrate on reasonable
doubt and to portray Jenkins as a good person was reasonable under the
circumstances. Moreover, the evidence that Jenkins submits should have
been introduced - his abusive childhood and the fact that that abuse made
him a violent adult - would have been in direct conflict with the evidence
presented. Every witness questioned about Jenkins’s demeanor at the
Rule 32 hearing stated that Jenkins was meek and mild. We cannot say
that counsel’s conduct fell outside the wide range of professional conduct.
See Strickland.
Last, Jenkins cannot show any prejudice. As the United States
Supreme Court recently stated in Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003), when reviewing a claim of
ineffective assistance of counsel at the penalty phase of a capital murder
trial:
In Strickland [v. Washington, 466 U.S. 668 (1984)], we
made clear that, to establish prejudice, a “defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. In assessing
prejudice, we reweigh the evidence in aggravation against
the totality of available mitigating evidence.
539 U.S. at 534, 123 S.Ct. at 2542.
The circuit court stated the following in its order denying relief:
The Court notes that for the reasons that will follow,
the evidence presented at the hearing would not have
affected the sentence this Court would have imposed on
Jenkins. The aggravating circumstances clearly outweighed
120
any mitigation caused by Jenkins’s “abusive childhood,”
below average intelligence, lack of criminal history, and his
age. Jenkins kidnapped, robbed, and brutally murdered
Tammy Hogeland. He then disposed of her nude body on
the side of the interstate, leaving her to decompose beyond
recognition. Death was the appropriate punishment in this
case.
(C.R. 326.) We, like the circuit court, have independently reweighed the
alleged mitigating evidence against the aggravating circumstances that
were proven by the State. Given the aggravating circumstances that were
proven by the State and the facts surrounding Hogeland’s murder, we,
like the circuit court, are confident that death was the appropriate
punishment for Jenkins’s actions.
Jenkins, 972 So. 2d 111 at 145-48.
Again, because it is clear that Jenkins cannot show that he was prejudiced by
counsel’s failure to present to the jury in the penalty phase, evidence concerning his age
at the time of the offense, his lack of criminal history, and his intoxication at the time
of the crime, the court will address only the prejudice prong of Strickland. To establish
prejudice, Jenkins must show that there is a reasonable probability that, but for
counsel’s failure to present to the jury in the penalty phase, evidence concerning his age
at the time of the offense, his lack of criminal history, and his intoxication at the time
of the crime, he would have received a different sentence. See Porter v. McCollum, 558
U.S. at 41.
During the penalty phase of the trial, defense counsel argued the following in his
121
opening statement:
The Alabama Code sets out mitigating circumstances. I would like to
hasten to add, though, that you are not limited to what the Code says that
you may consider when you think about mitigating circumstances. This
is in the Alabama Code 13A-5-51: mitigating circumstance generally.
Mitigating circumstances shall include, but not be limited to the following:
the defendant has no significant history of prior criminal activity. Two, the
capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance. Three the victim
was a participant in the defendant’s conduct or consented to it. Four, the
defendant was an accomplish [sic] in the capital offense committed by
another person, and his participation was relatively minor. Five, the
defendant acted under extreme duress or under the substantial domination
of another person. Six, the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law was substantially impaired. And last, the age of the defendant
at the time of the crime.
(R. Vol. 9, Tab 15 at 1710-11). Further, the court instructed the jury as follows in the
penalty phase:
Each side may also rely in whole or in part on the evidence presented at
the first stage of the trial, and that’s the guilt stage . . . . In other words,
you can consider the evidence presented in that trial insofar as the
evidence relating to the aggravating and mitigating circumstances.
(Id. at 1703).
Now, then, the mitigating circumstances that the defendant might present
to the jury, there are seven of those, and I’ll read all of those to you.
Mitigating circumstances shall include but not be limited to the following.
The defendant has – now this is a matter of proof. I’m not saying this is
in existence or not in existence. It’s just the mitigating circumstances that
the defendant can present to the jury for your consideration. The
defendant has no significant history of prior criminal activity. Number
122
two, the capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance. Number three, the
victim was a participant in the defendant’s conduct or consented to it.
Number four, the defendant was an accomplice in the capital offense
committed by another person, and his participation was relatively minor.
The defendant acted under extreme or under the substantial domination
of another person. The capacity of a defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of law was substantially impaired. The age – number seven, the age of the
defendant at the time of the crime. Now, I told you that at the beginning
of that. The defendant also in addition to these could offer any evidence
to any other mitigating circumstances that would be material to this case.
And you do not have to find that those exist beyond a reasonable doubt
as I told you while ago.
(Id. at 1715-17).
And then even though the defendant has not specifically enumerated what
mitigating circumstances he is relying on, I gave you all seven of those for
your consideration. And at that time I also told you that you could
consider any other mitigating circumstances that you might find have a
bearing on your sentence in this case.
(Id. at 1739-40).
In making your determination in concerning the existence of aggravating
or mitigating circumstances, you should consider the evidence presented
at this sentencing hearing. You should also consider any evidence that
was presented during the guilt stage of the trial that is relevant to the
existence of any aggravating or mitigating circumstances.
(Id. at 1742).
Now, I have already read to you . . . the mitigating circumstances that you
might consider. There are seven of them. And if there are other mitigating
circumstances that are not enumerated in the Code section, you have a
right to consider that also in reaching your decision as to punishment. I
123
have read you all of the seven mitigating circumstances set out in the
Code. And I have instructed you that you may consider all seven of those
whether they exist or not. A mitigating circumstances [sic] considered by
you should be based on the evidence you have heard. When the factual
existence of an offered mitigating circumstance is in dispute, the State
shall have the burden of disproving the facts that exist of that
circumstance by a preponderance of the evidence. The burden of
disproving it by a preponderance of the evidence means that you are to
consider that the mitigating circumstance does exist unless the evidence
as a whole [sic] it is more likely than not the mitigating circumstances
does [sic] not exist. Therefore, if there is a factual dispute over the
existence of a mitigating circumstances [sic], then you should find and
consider the mitigating circumstances does [sic] exist unless you find the
evidence from the evidence [sic] that it is more likely than not that the
mitigating circumstance did not exist.
(Id. at 1747-48).
The mitigating circumstances which are set out in the Code, and it is [sic]
as follows. Mitigating circumstances shall include, but not be limited to
the following. No. 1, the defendant has no significant history of a prior
criminal activity. The capital offense was committed while the defendant
was under influence of extreme mental or emotional distress. The victim
was a participant in the defendant’s conduct or consented to it. The
defendant was an accomplice to the capital offense committed by another
person, and his participation was relatively minor. The defendant acted
under extreme duress and under the substantial domination of another
person. The capacity of the defendant to appreciate the criminality of his
conduct, or to conform his conduct to the requirements of law was
impaired. And the age of the defendant at the time of the crime. Then, of
course, that also starts off saying, this is not the only one I told you two
or three times, that if there were any other mitigating circumstances that
was [sic] offered, that you could consider that, if any other offered.
(Id. at 1759-60).
The jury was provided with a list of statutory mitigating circumstances several
124
times, advised that they should also consider any other mitigating circumstance not
specifically listed, and instructed to should consider any evidence presented during the
guilt phase of the trial, to the extent it was relevant to the existence of any aggravating
or mitigating circumstances. Further, the court specifically advised the jury that
although Jenkins had not stated which of the statutory mitigating circumstances he was
relying on, they were required consider each of the statutory mitigating circumstances
set out by the court, as well as any others that might have a bearing on the sentence.
There was evidence presented at the guilt phase of the trial that Jenkins was only
twenty-one years old and that he was drinking or intoxicated on the night of the murder.
(R. Vol. 4 at 633; R. Vol. 5 at 960, 969-70; R. Vol. 6 at 1148, 1156). In the closing
argument during the guilt phase of the trial, defense counsel placed great emphasis on
the fact that Jenkins was intoxicated on the night of the crime. (R. Vol. 8, Tab 12 at
1567, 1570, 1572, 1598, 1601-02). In its closing argument during the penalty phase of
the trial, the state pointed out that although there had been mention of Jenkins’s age,
the jury should also consider the victim’s age. (R. Vol. 9, Tab 15 at 1734). Further,
there was no evidence or argument that Jenkins had any prior criminal history.
The jury clearly had before it, evidence concerning Jenkins’s age and
intoxication at the time of the crime, as well as no evidence that Jenkins had a prior
criminal record. As instructed by the court, the jury was required to consider these
125
mitigating factors in reaching its decision. Thus, there is not a reasonable probability
that Jenkins would have received a sentence of life without parole, even if counsel had
specifically presented evidence of Jenkins’s age, intoxication and lack of criminal
history, during the penalty phase before the jury.30 The Alabama Court of Criminal
Appeals’ finding that Jenkins cannot show any prejudice was not patently
unreasonable.
c.
Model behavior and positive adjustment to
pretrial incarceration
Jenkins argues that counsel’s failure to investigate and present evidence that he
was a model inmate who made a positive adjustment to pretrial incarceration
“undoubtably impacted his trial, and deprived [him] of his right to the effective
assistance of trial” counsel. (Doc. 12 at 51-52). Jenkins alleges that:
trial counsel did not even take the time to walk across the street to
interview the jailers who supervised Mr. Jenkins for the two years of his
pretrial detention. If they had taken even this minimal step they would
have readily learned that Mr. Jenkins was, in the terms of the Rule 32
court, an “absolutely model prisoner,” and inmate who never complained,
was respectful, polite and courteous and someone who always prefaced
their remarks with “yes, sir,” and “no, sir.” (R2 at 19-24.) According
Chief Jailer Bonnie Adams, who had worked at the St. Clair County Jail
much of his adult life, Mr. Jenkins was a model inmate, “the very best I
have ever supervised.” (R2 at 26.)
30
Additionally, the court notes that, in its sentencing order, the trial court specifically considered
each of these mitigating factors, discounting the evidence of Jenkins’s intoxication, before imposing
the death sentence on Jenkins.
126
Virginia Price, a second correctional officer from the St. Clair
County Jail testified at the Rule 32 hearing and agreed with Mr. Adams
assessment of Mr. Jenkins, and characterized him as “one of the best”
inmates she supervised in her correctional career. (R2 at 40.) In addition
to being respectful, polite and courteous, and said she never heard Mr.
Jenkins use a cross word or engage in backtalk. (R2 at 39-41.) Both
officers testified that Mr. Jenkins never engaged in misconduct, never had
a fight, never observed him make a threat and never had any other
problems. The correctional officers also testified that no one from the
defense ever interviewed them prior to Mr. Jenkins trial, but if they had,
they would have given the same testimony. (R2 at 26-27, 41-42.)
In addition to the testimony of two jail guards, Mr. Jenkins
introduced documentary evidence showing that during his pretrial
detention he was a model of good behavior. (R3 at 545-714.) The
hundreds of pages of documents, including progress notes memorializing
the observations of dozens of mental health care workers, demonstrate
Mr. Jenkins had no disciplinary problems, never engaged in misconduct,
and was universally considered cooperative and polite. (See, e.g., R3 at
601-46, 663-72.) The State has never offered any evidence or argument
to rebut this compelling evidence, either at the Rule 32 hearing or
elsewhere. Indeed, its own mental health expert testified Mr. Jenkins had
made a positive adjustment to incarceration.
(Doc. 12 at 50-51).
Jenkins cites Skipper v. South Carolina, 476 U.S. 1, 6 (1986) in support of this
claim. He argues that:
The Skipper Court emphasized the special significance of objective
sources – such as state-employed jail guards - of an inmate’s pretrial
conduct. “The testimony of more disinterested witnesses – and in
particular, of jailers who would have had no particular reason to be
favorably predisposed toward one of their charges – would quite naturally
be given much greater weight by the jury.” 476 U.S. at 8 (emphasis
added). Where such objective indicia of a defendant’s adjustment exists,
127
as in Mr. Jenkins’s case it is “reasonably likely that the exclusion of
evidence bearing on [the defendant’s] behavior in jail . . . may have
affected the jury’s decision to impose the death sentence. Thus, under any
standard, the exclusion of the evidence was sufficiently prejudicial to
constitute reversible error.” 476 U.S. at 8 (emphasis added).
Counsel’s failure to investigate and present this undisputed
evidence undoubtably impacted his trial, and deprived Mr. Jenkins of his
right to the effective assistance of trial.
(Doc. 12 at 52).
The Alabama Court of Criminal Appeals denied the claim on the merits:
Jenkins argues that his trial counsel was ineffective for failing to
investigate and introduce evidence of his good conduct while he was
incarcerated in the county jail awaiting trial. At the Rule 32 hearing,
Jenkins presented the testimony of two jailers who worked in the St. Clair
County jail where Jenkins was housed for 18 months before he was tried.
The two jailers stated that Jenkins was polite, courteous, and respectful
and that he never complained.
The circuit court, when considering this issue, stated:
The inconsistencies in the different theories of
mitigation presented through Sharon Seal’s testimony is also
true concerning the testimony of the two St. Clair County
jailers who testified. Both jailers testified that Jenkins was
an absolute model prisoner who was always courteous and
respectful. Again, the Court finds this to be inconsistent with
the theory that the abuse Jenkins allegedly suffered as a
child caused him to commit violence as an adult.
Additionally, the Court notes that the behavior observed by
the jailers occurred after the crime. The observation also
took place during time when Jenkins was confined alone to
a prison cell, directly across from the guard desk. The Court
finds nothing in the testimony of the jailers which mitigates
128
Jenkins’s crime.
(C.R. 331.) Jenkins argues that the circuit court’s findings are inconsistent
with the United States Supreme Court’s holding in Skipper v. South
Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), because, he
argues, a court must consider this type of evidence to be mitigating
evidence.
The United States Supreme Court in Skipper held that evidence of
Skipper’s good behavior in prison was improperly excluded from the
penalty phase of his capital trial after the State had introduced evidence
of his assaultive behavior. The trial court refused to allow two jailers and
one regular jail visitor to testify about Skipper’s good behavior and his
good adjustment to prison life. In reversing the lower court’s ruling, the
Supreme Court stated, “[E]vidence that the defendant would not pose a
danger if spared (but incarcerated) must be considered potentially
mitigating.” 476 U.S. at 5, 106 S.Ct. 1669. Since Skipper, the United
States Supreme Court has stated that its holding in Skipper was founded
on due-process considerations. In Simmons v. South Carolina, 512 U.S.
154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the United States Supreme
Court stated:
In Skipper v. South Carolina, 476 U.S. 1 (1986), this
Court held that a defendant was denied due process by the
refusal of the state trial court to admit evidence of the
defendant’s good behavior in prison in the penalty phase of
his capital trial. Although the majority opinion stressed that
the defendant’s good behavior in prison was “relevant
evidence in mitigation of punishment,” and thus admissible
under the Eighth Amendment, Id., at 4, citing Lockett v.
Ohio, 438 U.S. [586], at 604 [ (1978) ] (plurality opinion),
the Skipper opinion expressly noted that the Court’s
conclusion also was compelled by the Due Process Clause.
The Court explained that where the prosecution relies on a
prediction of future dangerousness in requesting the death
penalty, elemental due process principles operate to require
admission of the defendant’s relevant evidence in rebuttal.
129
476 U.S., at 5, n. 1. See also Id., at 9 (Powell, J., opinion
concurring in judgment) (“[B]ecause petitioner was not
allowed to rebut evidence and argument used against him,”
the defendant clearly was denied due process).”
512 U.S. at 164, 114 S.Ct. 2187. Good conduct during pretrial
incarceration is not necessarily a mitigating circumstance. State v. Spears,
184 Ariz. 277, 279, 908 P.2d 1062 (1996). Whether potentially mitigating
evidence mitigates the offense is for the trial court to determine. See Ex
parte Ferguson, 814 So.2d 970 (Ala. 2001). “While Lockett and its
progeny require consideration of all evidence submitted as mitigation,
whether the evidence is actually found to be mitigating is in the discretion
of the sentencing authority.” Ex parte Slaton, 680 So.2d 909, 924 (Ala.
1996), quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App.
1989).
Jenkins argues that his counsel was ineffective for failing to
investigate and present evidence of his good conduct while he was
incarcerated and awaiting trial. In order to show that counsel was
ineffective, the petitioner must satisfy the two-pronged test articulated in
Strickland v. Washington. The petitioner must show that counsel’s
performance was deficient and that he was prejudiced by the deficient
performance. Here, neither attorney was questioned about this issue there is no explanation in the record as to whether counsel was in
possession of this information, and, if so, why this evidence was not
presented as potential mitigation at the penalty phase. Therefore, Jenkins
failed to meet his burden of proof.
Moreover, evidence of Jenkins’s conduct while in jail awaiting trial
was at most “minimally mitigating.” State v. Spears, supra. A defendant
facing trial on capital charges is more likely to be well-behaved in prison
than an individual who has already been convicted of a capital offense and
has no incentive to cooperate with his jailers. Also, as the trial court noted
the good conduct exhibited by Jenkins was when Jenkins was alone in a
cell that was located directly across from a guard desk. We are confident
that had this information been presented to the jury it would have had no
impact on the jury’s recommendation of death in this case.
130
Jenkins, 972 So. 2d at 148-49 (alterations in original). Jenkins argues that the decision
that “such compelling evidence was not mitigating is clearly unreasonable.” (Doc. 48
at 49).
In Skipper v. South Carolina, 476 U.S. 1 (1986), the Supreme Court “held that
a defendant was denied due process by the refusal of the state trial court to admit
evidence of the defendant’s good behavior in prison in the penalty phase of his capital
trial.” Simmons v. South Carolina, 512 U.S. 154, 164 (1994). In Skipper, the state
introduced as evidence in aggravation of the offense, Skipper’s history of sexually
assaultive behavior, arguing in closing arguments that Skipper would pose disciplinary
problems in prison if he was not sentenced to death. Skipper, 476 U.S. at 2-3. The
Court pointed out that evidence of Skipper’s possible future conduct in prison was
relevant in light of the “prosecutor’s closing argument, which urged the jury to return
a sentence of death in part because [Skipper] could not be trusted to behave if he were
simply returned to prison.” Id. at 5, n.1. The Court explained that “where the
prosecution specifically relies on a prediction of future dangerousness in requesting the
death penalty, elemental due process principles operate to require admission of the
defendant’s relevant evidence in rebuttal.” Simmons, 512 U.S. at 164 (citing Skipper,
476 U.S. at 5, n.1).
In Jenkins’s case, his potential future dangerousness in prison was not suggested
131
as an aggravating factor. In fact, the only aggravating factors argued by the prosecution
were that the murder was committed during the course of robbery and during a
kidnapping. Jenkins’s good behavior during pretrial incarceration could not have been
mitigating in this regard, as was the evidence at issue in Skipper. Thus, the Alabama
Court of Criminal Appeals’ finding that Jenkins was not prejudiced by counsel’s failure
to present this evidence to the jury was neither contrary to nor an unreasonable
application of clearly established Federal law, as determined by the United States
Supreme Court in Skipper. There is no basis for habeas relief.
d.
Failure to request a continuance of the penalty
phase
Jenkins next contends that despite counsel’s lack of preparation for and lack of
evidence to present in the penalty phase of his trial, “counsel failed to request a
continuance that might have allowed them to make up for their prior deficiencies.”
(Doc. 12 at 59). He argues that:
Although Stan Downey had done virtually nothing the entire trial
and had been nominally designated to handle the penalty phase only four
days before trial, he still attempted to shirk this responsibility. After the
end of the guilt phase, Downey asked Scofield to take over the penalty
phase and to question the single witness available. To this Scofield
testified that he instructed Downey, who had never spoke [sic] with the
witness, to “[g]o downstairs and talk to him, interview him, and get him
ready to put on.” (R2 at 328.) The incompetent examination of this
witness, which followed, is a testament to trial counsel’s lack of
preparation and ineffectiveness.
132
(Id. at 60). He concludes that counsel’s “failure to move for a continuance in these
circumstances was ineffective and prejudicial to Mr. Jenkins because it deprived
counsel of the opportunity to overcome their lack of preparation, to secure witnesses,
to secure records, and to secure the testimony of an expert witness.” (Id.).
In denying this claim, the Alabama Court of Criminal Appeals stated:
There was no testimony presented concerning this issue at the Rule
32 hearing. Scofield was asked whether he and Downey requested a
continuance; however, he was not asked why they failed to do so. Jenkins
has failed to meet his burden of proof in regards to this issue. See Rule
32.3., Ala.R.Crim.P.
Jenkins, 972 So. 2d at 149. Jenkins claims that this decision was contrary to or
involved an unreasonable application of clearly established Federal law, and that it was
based on an unreasonable determination of the facts.
The Alabama Court of Criminal Appeals found that by failing to present
testimony at the Rule 32 evidentiary hearing concerning counsel’s failure to request a
continuance of the penalty phase of the trial, Jenkins had failed to prove either that
counsel’s failure to request a continuance amounted to constitutionally deficient
performance, or that he was prejudiced by counsel’s failure to request a continuance.
Jenkins fails to offer any evidence to indicate that if counsel had requested a
continuance, it would have been granted, or that if a continuance had been granted,
there is a reasonable probability that he would have received a sentence of life without
133
parole, instead of death. Thus, the Alabama Court of Criminal Appeals’ determination
that Jenkins failed to meet his burden of proof on this claim was not contrary to or an
unreasonable application of clearly established Federal law, and was not based on an
unreasonable determination of the facts.
2.
Counsel’s Deficient Performance Deprived Mr. Jenkins of the
Effective Assistance of Counsel during the Sentencing Hearing
Jenkins contends that his attorney’s31 failure to investigate and develop evidence
in preparation for the sentencing hearing, “given the disastrous impact of the prior
failures, deprived [him] of the effective assistance of counsel.” (Doc. 12 at 62-63). He
claims that “although counsel knew the jury’s recommendation was not binding, he was
unaware that the law permitted him to introduce evidence before the sentencing judge.”
(Id. at 63). Jenkins concludes that as a result of counsel’s “ignorance,”32 he “conducted
no investigation following the jury’s verdict even though he had access to the
31
Doug Scofield was the only attorney representing Jenkins at the sentencing phase before the trial
judge. (Rule 32 R. Vol. 21 at 323).
32
As examples of Scofield’s “ignorance,” Jenkins cites the following statements from Scofield’s
testimony at the Rule 32 hearing:
• “[M]y recollection is it never really occurred to me to call and put on actual
evidence before the Judge other than the pre-sentence report.” (Rule 32 R. Vol. 21
at 321)
• “I had never been through a penalty phase before. I didn’t understand what I was
doing.” (Id. at 324).
134
presentence report containing reference to an abundance of mitigating evidence and
promising leads for investigation,” and as a result, the trial judge “never heard evidence
of the compelling mitigating circumstances from Mr. Jenkins’s background, history and
character.” (Id.).
The Alabama Court of Criminal Appeals denied this claim on the merits on
appeal from the denial of Jenkins’s Rule 32 petition:
Jenkins argues that his counsel failed to effectively argue his case
in the separate sentencing hearing that was held before the trial court
pursuant to § 13A-5-47(c), Ala.Code 1975.
Here, counsel prepared a detailed presentence memorandum that
mirrored information about Jenkins’s childhood contained in the
presentence report. Counsel also argued at the hearing before the trial
court that Jenkins had no significant history of prior criminal activity, that
Jenkins was intoxicated and was impaired at the time of the murder, that
the murder was not premeditated, that Jenkins had been abused in his
childhood, and that Jenkins lacked a normal family life.
The trial court’s sentencing order shows that it considered evidence
of Jenkins’s abusive childhood but that it chose to give this evidence little
weight. It found that the aggravating circumstances outweighed the
mitigating circumstances. We can find no evidence indicating that
counsel’s performance before the sentencing hearing held before the trial
court was deficient. Jenkins has failed to satisfy the Strickland test.
Jenkins, 972 So. 2d 111, 149-50 (Ala. Crim. App. 2004). Jenkins argues that the state
court’s adjudication of this claim resulted in a decision that was contrary to, and
involved an unreasonable application of, clearly established Federal law, and that it was
135
also based on an unreasonable determination of the facts. (Doc. 12 at 63-64).
At the sentencing hearing, counsel again argued the residual doubt theory it had
pursued throughout the prior proceedings. (R. Vol. 9, Tab 24). Counsel submitted a
detailed sentencing memorandum in which he set out the bleak history of Jenkins’s
childhood and argued as mitigating circumstances, the facts concerning Jenkins’s
upbringing; that he had no significant history of prior criminal activity; that the victim
was a participant in Jenkins’s conduct or consented to it; that his capacity to appreciate
the criminality of his conduct or conform his conduct to the requirements of the law
was substantially impaired by his extreme intoxication; and that he was twenty-one
years old at the time of the crime. The sentencing memorandum also offered lack of
premeditation; the fact that the offense was not especially heinous, atrocious, or cruel
when compared with other capital offenses; and lack of use of a dangerous weapon as
mitigating circumstances. (Doc. 56-2 at 11-22). At the hearing, counsel went on to
argue Jenkins’s lack of prior criminal history; that the victim was a willing participant
in the crime; that Jenkins was highly intoxicated at the time of the crime; that he could
not have formed the requisite intent to kill; that while the offense was tragic, it was not
heinous; his age at the time of the crime; as well as his deprived upbringing. (R. Vol.
9, Tab 24 at 1771-78, 1783-84).
In rendering its sentence, the court specifically considered the pre-sentence
136
report provided by the probation officer,33 the aggravating circumstances relied upon
by the state, Jenkins’s lack of prior criminal history, his background and age, that he
was under the influence of alcohol, and that the offense was not especially heinous,
atrocious or cruel when compared to other capital offenses. (Id. at 1790-92). The court
then weighed the aggravating circumstances against the mitigating circumstances,
concluding that the aggravating circumstances outweighed the mitigating
circumstances. (Id. at 1792-93). In its sentencing order, the trial court stated that it had
considered “all mitigating circumstances as set out in Title 13A-5-51 of the 1975 Code
of Alabama, together with other mitigating circumstances not set out in the above Code
Section.” (C.R. Vol. 45, Tab 73 at 16). The court went on to state:
This Court has further considered the pre-sentence report going into
the background of the Defendant prior to the commission of the offense34
and also all of the mitigating circumstances as set out in the Defendant’s
Attorney’s pre-sentence memorandum35 and all of the mitigating
circumstances enumerated in Title 13A-5-51 of the Code of Alabama.
33
(Doc. 56-2 at 24-31).
34
The presentence report outlined Jenkins’s personal and social history. (See Doc. 56-2 at 24-31).
35
In the pre-sentence memorandum, Jenkins set out the bleak history of his childhood and argued as
mitigating circumstances that he had no significant history of prior criminal activity; the victim was
a participant in Jenkins’s conduct or consented to it; his capacity to appreciate the criminality of his
conduct or conform his conduct to the requirements of the law was substantially impaired by his
extreme intoxication; and he was twenty-one years old at the time of the crime. He also asked that
lack of premeditation; the fact that the offense was not especially heinous, atrocious, or cruel when
compared with other capital offenses; lack of use of a dangerous weapon; and Jenkins’s background
and lack of education be considered as mitigating circumstances. (Doc. 56-2 at 11-22).
137
(C.R. Vol. 45, Tab 73 at 18).
The Alabama Court of Criminal Appeals noted that counsel prepared the detailed
presentence memorandum, and that the trial court’s sentencing order indicates that the
court considered the evidence of Jenkins’s abusive childhood, but chose to give it little
weight. Jenkins, 972 So. 2d at 150. The court found that Jenkins failed to satisfy the
deficient performance prong of the Strickland test. Jenkins has offered nothing to
establish that this finding was contrary to or an unreasonable application of Strickland,
or that it was based upon an unreasonable determination of the fact.
3.
Trial Counsel Failed To Object and Take Action To Ensure
Appellate Review of the Prosecutor’s Discriminatory Use of
Peremptory Challenges
Jenkins maintains that the prosecutor at his trial removed each of the three
qualified blacks from the jury venire, and used fourteen of the state’s twenty-one strikes
to remove women, for a total of seventeen of twenty-one peremptory challenges to
remove individuals from protected classes from the venire.36 (Doc. 12 at 64). He
36
When he raised this claim in his Amended Rule 32 Petition, Jenkins challenged only the alleged
systematic exclusion of blacks from the jury; he did not mention women being excluded. (Rule 32
C.R. Vol. 18, Tab 46 at 225-30; Rule 32 C.R. Vol. 18, Tab 47 at 358-59). Although he included
women in his argument on appeal from the denial of the Rule 32 petition, the Alabama Court of
Criminal Appeals considered only the portion of the claim pertaining to the alleged exclusion of
blacks from the jury, specifically noting that although Jenkins made “other arguments in support of
this contention,” the court would not consider those arguments for the first time on appeal, since its
review was “limited to evidence and arguments considered by the trial court.” Jenkins, 972 So. 2d
at 127 n.9. Because the state courts have never reviewed this claim as it pertains to women, the claim
is now barred from review in this court.
138
contends that counsel were ineffective for failing to object to the prosecutor’s
unconstitutional use of peremptory challenges and for failing to insure that the appellate
record contained the necessary documentation to prove the prosecutor’s
unconstitutional use of peremptory challenges. (Id.). These claims will be addressed
separately.
a.
Failure to object to the prosecutor’s
discriminatory use of peremptory challenges
Prior to trial, defense counsel filed a “Motion to Enjoin the Prosecutor from
Utilizing His Peremptory Challenges to Systematically Exclude Minorities from the
Jury Panel.” (C.R. Vol. 10, Tab 27 at 88). The motion reads as follows:
Defendant, Mark Allen Jenkins, by the undersigned counsel, moves
this Court for an order enjoining the prosecutor from using his peremptory
challenges to systematically exclude minorities from the jury panel which
will try the defendant.
As grounds therefore, defen[d]ant states the following:
1. The defen[d]ant is part Mexican-blood, and is charged with
killing a white person.
2. The prosecutor’s use of peremptory challenges to systematically
exclude minorities violates the defendant’s Sixth and Fourteenth
Amendment rights to trial by a jury composed of a fair cross-section of
the community and his Fourteenth Amendment rights to due process and
equal protection of the law, as well as his right to trial by an impartial
jury. People v. Kagen, 420 N.Y.S. 2d 987 (Sup. Ct. N.Y. Co. 1979);
Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979); People v.
Wheeler, 22 Cal. 3d 258, 583 P.2d [sic] (1978).
139
(Id.) (alterations added). The trial judge reserved ruling on the motion until it was
“raised in the proper manner at the time of the selection of the jury,” noting that
everyone was familiar with the Batson holding, and stating that he expected the state
to comply with Batson if it were applicable. (R. Vol. 1, Tab 3 at 42). The prosecutor
stated his opinion that Batson was not applicable to the case because Jenkins is not “a
member of the black race.” (Id. at 42-43). He added that he did not “intend to hold
back on any striking of any blacks from this jury because of this motion” if he did not
“particularly like” their answers to voir dire questions. (Id. at 43). Defense counsel
explained that the motion was “just to preclude the State from systematically excluding
minorities,” not to “say that they don’t have the right to strike any minority.” (Id. at
44). Subsequently, the only three blacks on the venire, Lesley Sanders, juror number
29, James Cunningham, juror number 40, and David Jones, juror number 45, were
removed by the state. (R. Vol. 3 at 445-450). Defense counsel did not object to the
removal of these three men. (Id.).
Jenkins claims that counsel were ineffective for failing “to object to the
prosecutor’s unconstitutional use of peremptory challenges, even though the defense
was aware of the impropriety and had even filed a pretrial motion to bar such conduct.”
140
(Doc. 12 at 64).37 In denying this claim on appeal from the denial of Jenkins’s Rule 32
petition, the Alabama Court of Criminal Appeals found:
Jenkins argues that Scofield failed to object to the State’s alleged
discriminatory use of its peremptory strikes. He argues that Scofield failed
to make a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986), objection after the jury was struck and after all of the blacks
had been removed from the venire. The United States Supreme Court in
Batson held that black prospective jurors could not be excluded from a
black defendant’s jury solely on the basis of their race. FN.4.
FN.4. Batson has also been extended to defense counsel in
Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120
L.Ed.2d 33 (1992), and to gender in J.E.B. v. Alabama, 511
U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
Jenkins was convicted on March 19, 1991. On April 1, 1991, the
United States Supreme Court released its decision in Powers v. Ohio, 499
U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), holding that “a
criminal defendant may object to race-based exclusions of jurors effected
through peremptory challenges whether or not the defendant and the
excluded juror share the same race.” 499 U.S. at 402, 111 S.Ct. 1364.
Jenkins is white. FN.5.
FN.5. All of the court documents reflect that Jenkins is
white. However, witnesses at the Rule 32 proceeding
testified that Jenkins is of Hispanic descent
37
In his brief, Jenkins also alleges that “counsel’s failure to argue all the relevant facts in support of
the prima facie showing [of a Batson violation] was also constitutionally deficient.” (Doc. 48 at 90).
While Jenkins seems to have made such a claim in his brief on appeal from the denial of his Rule 32
petition (Rule 32 C.R. Vol. 37, Tab 52 at 15-21), he did not make it in the Rule 32 court (Rule 32
C.R. Vol. 18, Tab 46 at 225-30; Rule 32 C.R. Vol. 18, Tab 47 at 358-59). The Alabama Court of
Criminal Appeals specifically noted that in his appellate brief, Jenkins made “other arguments” in
support of his Batson-related ineffective assistance of counsel claims, but declined to consider those
arguments for the first time on appeal. Jenkins, 972 So. 2d at 127 n.9. Because the state courts have
never reviewed this claim, it is also barred from review in this court.
141
The trial court made the following findings of fact concerning this
issue:
On April 30, 1986, the United States Supreme Court
decided Batson v. Kentucky, 476 U.S. 79 (1986), which
held that a State denies a black defendant equal protection
when it puts him on trial before a jury from which members
of his race have been purposefully excluded. The jury which
convicted Jenkins was struck and empaneled on March 13,
1991. On February 7, 1991, trial counsel for Jenkins filed a
“motion to enjoin the prosecution from utilizing his
peremptory challenges to systematically exclude minorities
from the jury panel.” In support of the motion, counsel
asserted that Jenkins “[was] part Mexican-blood, and [was]
charged with killing a white person.” Trial counsel argued
that the motion addressed “all minorities” including blacks,
despite the fact that the law did not support that contention.
At the relevant time, a defendant could establish a prima
facie case of “purposeful discrimination in selection of the
petit jury solely on evidence concerning the prosecutor’s
exercise of peremptory challenges at the defendant’s trial.”
Batson, 476 U.S. at 96. However, to establish such a case,
“the defendant first must show that he [was] a member of a
cognizable racial group and that the prosecutor ha[d]
exercised peremptory challenges to remove from the venire
members of the defendant’s race.” The claim in the amended
petition relates to “African-American veniremembers.”
Because Jenkins is not an African American, an objection to
the striking of members of that race would have been
meritless at the relevant time.
Subsequent to Jenkins’s conviction, the United States
Supreme Court decided Powers v. Ohio, 499 U.S. 400,
404-17 (1991), which held that under the Equal protection
clause, a criminal defendant may object to race-based
exclusions of jurors through peremptory challenges whether
or not the defendant and the excluded jurors share the same
142
race. Powers was a change in the law. Farrell v. Davis, 3
F.3d 370, 371-72 (11th Cir.1993). Alabama courts on many
occasions have refused to hold trial counsel’s performance
ineffective for failing to forecast changes in the law. State v.
Tarver, 629 So.2d 14, 17-18 (Ala.Crim.App. 1993), . . . ;
Morrison v. State, 551 So.2d 435 (Ala.Crim.App. 1989),
cert. denied, 495 U.S. 911 (1990). It appears, however, that
trial counsel did forecast Powers. The trial court simply did
not share trial counsel’s foresight. Trial counsel’s
performance was certainly not outside ‘the wide range of
reasonable professional assistance.’ Strickland v.
Washington, 466 U.S. at 689. Finally, there is no reasonable
probability that had a Batson/Powers motion been made and
entertained by the trial court, the result of the trial would
have been different.
(C.R. 307-09.)
The trial court’s findings are consistent with Alabama caselaw. We
have frequently held that counsel’s performance is not deficient for failing
to “forecast changes in the law.” See Dobyne v. State, 805 So.2d 733
(Ala.Crim.App. 2000), aff’d, 805 So.2d 763 (Ala. 2001); Nicks v. State,
783 So.2d 895 (Ala.Crim.App. 1999), cert. quashed, 783 So.2d 926 (Ala.
2000); Lawhorn v. State, 756 So.2d 971 (Ala.Crim.App. 1999); Davis v.
State, 720 So.2d 1006 (Ala.Crim.App. 1998); McArthur v. State, 652
So.2d 782 (Ala.Crim.App. 1994); State v. Tarver, 629 So.2d 14
(Ala.Crim.App. 1993). Jenkins’s attorneys were not “‘obliged to object
based on possible future developments in the law in order to render
effective assistance.’” Thompson v. State, 581 So.2d 1216, 1236
(Ala.Crim.App. 1991), quoting trial court’s order, which this Court
adopted.
Jenkins, 972 So. 2d at 122-23.
Jenkins asserts that the state court’s application of Powers v. Ohio, 499 U.S. 400
(1991) was contrary to clearly established Federal law because it “ignored the Supreme
143
Court’s well-established rule that its decisions are binding in all criminal cases in which
convictions are not yet final.” (Doc. 48 at 86). He bases this contention on Griffith v.
Kentucky, in which the Court held that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.” Griffith, 479 U.S. 314, 328 (1987). Jenkins
argues that:
In this case, Mr. Jenkins’s was not even sentenced until after Powers, and
did not exhaust his appeals for another three years. See Jenkins v.
Alabama, 511 U.S. 1012 (1994). Accordingly, Powers applies. Moreover,
because Mr. Jenkins’s case was still pending before the circuit court,
Powers was clearly established Federal law at the time of his trial as well
as for his appeal. See Adkins v. Warden, Holman CF, 710 F.3d 1241,
1247 (11th Cir. 2013) (“[T]here can be no doubt that Powers was ‘clearly
established Federal law’ within the meaning of 28 U.S.C. § 2254(d) at the
time Mr. Adkins’s case was pending on direct appeal before the Alabama
Courts.”) (citing Greene v. Fisher, __U.S. __, 132 S.Ct. 38, 45 (2011)
(holding that “clearly established Federal law” for the purposes of §
2254(d) includes Supreme Court decisions in existence at the time of the
state-court adjudication on the merits)).
The CCA decision adopting the circuit court’s ruling in
post-conviction was contrary to clearly established Federal law. “[I]f the
state court applies a rule that contradicts the governing law set forth in our
cases” that decision is “contrary to” clearly established Federal law,
under § 2254(d)(1). Williams, 529 U.S. at 405. Under Griffith and clearly
established retroactivity law, Powers was not a future development but
was in fact the law when the trial court still had jurisdiction over the case.
Because the CCA’s decision was “contrary to” the law, and its Strickland
analysis of counsel’s performance both at trial on appeal was based on an
144
erroneous understanding of the applicable law, Mr. Jenkins is entitled to
de novo review of this claim.
(Doc. 48 at 87-88).
This argument is frivolous. Of course, Powers applied to Jenkins’s case because
Powers was decided before his case became final on direct review. In fact, when
Jenkins claimed on direct appeal that he was deprived of a fair trial by the state’s
racially discriminatory use of its peremptory challenges, the Alabama Court of Criminal
Appeals noted that Powers had extended the Batson ruling. Jenkins, 627 So. 2d at
1042. However, the appellate court denied the claim because Jenkins failed to establish
a Batson violation. Id.
Jenkins suggests that because Powers allowed him to claim on direct appeal that
blacks were improperly excluded from the jury, his attorneys can also be faulted for
failure to object to the state’s peremptory challenges at trial, prior to the decision in
Powers. Jenkins cites Adkins v. Warden, Holman CF, 710 F.3d 1241, 1247 (11th Cir.
2013) in support of his contention that because his case did not become final on direct
review until after Powers was decided, “Powers was clearly established Federal law
at the time of his trial as well as for his appeal.” (Doc. 48 at 87). However, Adkins did
not involve a claim that counsel were ineffective for failing to object to the prosecutor’s
alleged discriminatory use of peremptory challenges. Rather, it involved only a
145
substantive Batson claim. Jenkins has cited nothing to support his argument that
counsel striking a jury before Powers was decided, can be found deficient for failing
to raise a Powers/Batson claim at trial, simply because Powers was decided prior to the
completion of direct review of the case. This claim has no merit.
Jenkins further argues that the Alabama Court of Criminal Appeals’
determination that counsel’s performance was not deficient was based upon an
unreasonable finding of fact under § 2254(d)(1). Specifically, he alleges:
At the time of trial, however, Alabama law also allowed for the
very relief Mr. Jenkins’s [sic] sought in his pretrial motion because it
permitted white defendants to raise Batson challenges to the exclusion of
African Americans from the venire. See, e.g., Duncan v. State, 575 So.2d
1198, 1206 n.1 (Ala. Crim. App. 1990) (citing Holland v. Illinois, 493
U.S. 474, 492 (1990) (Marshall, J., dissenting)) (noting “the agreement
of five Justices that a defendant’s race is irrelevant to the Fourteenth
Amendment standing inquiry”); Guthrie v. State, 598 So.2d 1013,
1014-17 (Ala. Crim. App. 1991) (discussing pre-Powers Batson hearing
for a white defendant); Kuenzel v. State, 577 So.2d 474, 485 (Ala. Crim.
App. 1990) (assuming white defendant has standing to raise a Batson
claim). Consequently, in addition to his federal right under Powers, Mr.
Jenkins also had a state right to this relief. Counsel’s deficient
performance is cognizable because the Sixth Amendment right to the
effective assistance of counsel applies to claims that are founded on state
or Federal law. See, e.g., Alvord v. Wainwright, 725 F.2d 1282, 1291
(11th Cir. 1984) (holding that the issue of counsel’s ineffectiveness, “even
when based on the failure of counsel to raise a state law claim-is one of
constitutional dimension”); Sussman v. Jenkins, 636 F.3d 329 (7th Cir.
2011) (counsel deemed ineffective in child pornography and sexual
assault of minor case for failure to adequately present evidence of the
minor’s prior false accusation permissible under state law); Bell v. Miller,
500 F.3d 149 (2d Cir. 2007) (counsel ineffective for failing to consult
146
with and call a medical expert regarding the reliability of the victim’s
identification of the defendant where state law prohibited testimony on the
reliability of eyewitness identification from social scientists and it was
likely the trial court would have permitted rebuttal testimony).
(Doc. 48 at 89).38
Jenkins bases his argument that he had a state right to raise a Batson objection
at trial on Duncan v. State, Guthrie v. State, and Kuenzel v. State. In Duncan v. State,
the white defendant argued that his Fourteenth Amendment rights were violated by the
prosecutor’s use of peremptory challenges to remove blacks from the jury. Duncan,
575 So. 2d 1198, 1205 (Ala. Crim. App. 1990). While noting that the Supreme Court
had “not yet determined a white defendant’s standing to raise such a claim,” but had
“left open such a possibility,” the court went on to consider the claim under Batson,
remanding the case to the trial court for a Batson hearing. Id. at 1206-07.
In Guthrie v. State, the white defendant objected to the prosecutor’s use of
peremptory strikes to remove ten of the twelve black members of the jury venire.
Guthrie, 598 So. 2d 1013, 1015 (Ala. Crim. App. 1991). The prosecutor maintained
38
The court first notes that Jenkins did not make the argument concerning state law in the Rule 32
court. (Rule 32 C.R. Vol. 18, Tab 46 at 225-30; Rule 32 C.R. Vol. 18, Tab 47 at 358-59). While he
seems to have made the argument in his brief on appeal from the denial of his Rule 32 petition (Rule
32 C.R. Vol. 37, Tab 52 at 22-24), the Alabama Court of Criminal Appeals declined to consider
arguments raised for the first time on appeal. See Jenkins, 972 So. 2d at 127 n.9. The claim is
procedurally barred because it was not properly presented to the state courts. Regardless, the state
law argument is without merit.
147
that the defendant did not have standing to object because he was white and had failed
to establish a prima facie case of racial discrimination. Id. The trial court found “no
purposeful prima facie showing of purposeful discrimination,” and noted that the
defendant was “of the Caucasian race.” Id. However, prior to sentencing, in light of the
recently decided Supreme Court case of Holland v. Illinois, 493 U.S. 474 (1990)39, the
state filed a motion to supplement the record by adding the state’s race-neutral reasons
for striking certain prospective jurors from the venire. Id. The trial court held a hearing
on that motion, at which the prosecution maintained its position that the defendant had
not established a prima facie case of racial discrimination, but went on to state the
reasons for its peremptory challenges. Id. at 1015-17. The trial court held to its same
ruling that the defendant had not made a prima facie case of purposeful discrimination.
Id. at 1017. On appeal, after Powers was decided, the Alabama Court of Criminal
Appeals reversed and remanded the case to the trial court for further proceedings on
the Batson issue. Id. at 1020.
In Kuenzel v. State, both the defendant and the victim were white. Kuenzel, 577
So. 2d 474, 485 (Ala. Crim. App. 1990). The defendant claimed for the first time on
appeal that the prosecutor used peremptory strikes in a racially discriminatory manner.
39
In Holland, the Court held that a white defendant has standing to raise a Sixth Amendment “fair
cross section” challenge to the exclusion of blacks from the petit jury, without showing that he is a
member of the cognizable group excluded. 493 U.S. at 475-77.
148
The court found that “even assuming that this white defendant has standing to raise a
Batson-type objection,” he had not proven a prima facie case of purposeful
discrimination. Id. at 486.
It is a stretch to contend, based upon these cases, that Jenkins had a state right
to bring a Batson claim prior to the Powers decision. While the applicability of Batson
to a white defendant was considered in each of the cases, the cases in no way
established a right under state law to bring such a claim. Further, other Alabama cases
from the same time period specifically held that a white defendant did not have standing
to raise a Batson objection. See, e.g., Mathis v. State, 594 So. 2d 690, 690-91 (finding
that a non-black defendant may not raise a Batson claim); Gordon v. State, 587 So. 2d
427, 428 (Ala. Crim. App. 1990)(same); Owen v. State, 586 So. 2d 958, 959 (Ala.
Crim. App. 1990)(same); Pierce v. State, 576 So. 2d 236, 242 (Ala. Crim. App.
1990)(same); Bankhead v. State, 585 So. 2d 97, 101 (Ala. Crim. App. 1989)(same);
Bui v. State, 551 So. 2d 1094, 1114 (Ala. Crim. App. 1988), aff’d, 551 So. 3d 1125
(Ala. 1989)(same); Smith v. State, 515 So.2d 149, 150 (Ala. Crim. App. 1987)(same).
In light of all the cases to the contrary, and absent a ruling by the Alabama Supreme
Court specifically stating that defendants had a right under state law at the time to raise
a Batson objection, this court cannot find that such a right existed. Thus, the Alabama
Court of Criminal Appeals’ decision was not based upon an unreasonable finding of
149
fact.
b.
Failure to take action in insure appellate review of
the prosecutor’s discriminatory use of peremptory
challenges
Jenkins further claims that counsel were ineffective for failing to “insure that the
record contained the necessary documents to demonstrate the prosecutor’s
discriminatory action” and failing to “supplement the record with the information
necessary to support the claim” on appeal. (Doc. 12 at 64-65; Doc. 48 at 92). The
Alabama Court of Criminal Appeals found that counsel’s performance in this regard
was not deficient:
Jenkins also argues that Scofield failed to ensure that the record on
direct appeal to this Court and on appeal to the Alabama Supreme Court
was supplemented to support Jenkins’s Batson claim. He relies heavily on
this Court’s decision in Watkins v. State, 632 So.2d 555 (Ala.Crim.App.
1992) (Taylor and Montiel, JJ., dissenting), FN.6 in support of this
contention.
FN.6. When the Alabama Supreme Court quashed the
petition for certiorari review, four Justices dissented and
stated that this Court’s decision in Watkins should be
reversed. The composition of the Supreme Court has
changed since it decided Watkins.
When addressing this issue the circuit court stated:
Trial counsel Doug Scofield testified at the
evidentiary hearing that he continued to represent Jenkins on
appeal. Although he was the attorney of record, Mr.
Scofield stated that he was assisted a great deal by an
150
attorney with the Capital Resource Center, Hillary Hoffman.
The Court notes that the Capital Resource Center
represented death row inmates almost exclusively and the
majority of that representation was at the appellate level.
Regarding the extent of Ms. Hoffman’s involvement in the
case, Mr. Scofield stated the following:
I continued to be involved in the sense
of Hillary would prepare things. I would
review them for signature and things like that.
She did the majority of the work after that
point. I reviewed court opinions. I reviewed
her drafts and this, that and the other.
Primarily, at that point, she became more
involved in the actual appellate aspect of the
case. I argued the case before the Courts. In
terms of the actual preparation, she would
make drafts, send them to me and I would
review them.
The Court does not find it to be insignificant that the
Capital Resource Center was, in essence, raising the issues
on appeal and preparing the supporting argument. The past
experience of an attorney is an important consideration in
evaluating ineffective assistance of counsel claims. See State
v. Whitley, 665 So.2d 998, 999 (Ala.Crim.App. 1995)
(denying ineffective assistance of counsel claim while
pointing out that “[d]efendant’s attorney had extensive
experience in the trial of criminal cases and specifically
homicide cases.”)
(C.R. 309-10.)
In Watkins v. State, 632 So.2d 555 (Ala.Crim.App. 1992), a
majority of this Court held that an attorney’s performance before the
Alabama Supreme Court was deficient because the attorney failed to
ensure that the record was supplemented to support Watkins’s Batson
151
argument that counsel pursued before the Alabama Supreme Court. We
held that the failure to supplement the record in the Alabama Supreme
Court to include the racial composition of the jury members constituted
deficient performance and that “the petitioner did not have to show any
prejudice other than the reasonable probability that the Alabama Supreme
Court would have granted his motion to supplement the record to show
that a Batson hearing was warranted had one been made.” 632 So.2d at
563 (emphasis added).
At first blush it appears that our holding in Watkins supports
Jenkins’s claim and warrants relief. However, a closer examination of our
decision in Watkins reveals that our conclusion - that Watkins was denied
the effective assistance of counsel when pursuing his appeal before the
Alabama Supreme Court - was based on a faulty legal premise - that a
defendant has a constitutional right to counsel when pursuing an appeal
to the Alabama Supreme Court.
The United States Supreme Court in Douglas v. California, 372
U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), “held that denial of
counsel to indigents on first appeal as of right amounted to
unconstitutional discrimination against the poor.” Pennsylvania v. Finley,
481 U.S. 551, 554, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). The Douglas
Court also noted, “We are not here concerned with problems that might
arise from the denial of counsel for the preparation of a petition for
discretionary or mandatory review beyond the stage in the appellate
process at which the claims have once been presented by a lawyer and
passed upon by an appellate court.” 372 U.S. at 356, 83 S.Ct. 814. The
United States Court of Appeals for the Eleventh Circuit, in Williams v.
Turpin, 87 F.3d 1204, 1209 (11th Cir.1996), aptly stated the rationale
behind the Douglas holding:
The right to effective assistance of counsel during the first
appeal attaches because once a state has created a right of
appeal, the state must ensure that all persons have an equal
opportunity to enjoy the right. [Douglas v. California, 372
U.S. 353,] at 356-57, 83 S.Ct. [814] at 816 [ (1963) ].
However, “once a defendant’s claims of error are organized
152
and presented in a lawyerlike fashion” during the first appeal
as of right, the obligation of ensuring equal access to the
court system is no longer constitutionally required. Ross v.
Moffitt, 417 U.S. 600, 615-16, 94 S.Ct. 2437, 2446-47, 41
L.Ed.2d 341 (1974). “The duty of the State . . . is not to
duplicate the legal arsenal that may be privately retained by
a criminal defendant in a continuing effort to reverse his
conviction, but only to assure the indigent defendant an
adequate opportunity to present his claims fairly in the
context of the State’s appellate process.” Id.
We have consistently followed the Douglas holding and concluded
that the right to counsel does not extend beyond the first appeal as of
right. See State v. Tarver, 629 So.2d 14 (Ala.Crim.App. 1993); Jackson
v. State, 612 So.2d 1356 (Ala.Crim.App. 1992); Cunningham v. State,
611 So.2d 510 (Ala.Crim.App. 1992); James v. State, 564 So.2d 1002
(Ala.Crim.App. 1989); Kinsey v. State, 545 So.2d 200 (Ala.Crim.App.
1989); Thomas v. State, 511 So.2d 248 (Ala.Crim.App. 1987); Bies v.
State, 418 So.2d 940 (Ala.Crim.App. 1982). We have also applied the
Douglas holding to death-penalty cases. See State v. Tarver, supra, and
Thomas v. State, 511 So.2d 248 (Ala.Crim.App.1987).
In Alabama, the right to appeal a criminal conviction is a statutory
right. See § 12-22-130, Ala.Code 1975. A defendant convicted of a felony
has the right to appeal his conviction to the Alabama Court of Criminal
Appeals; therefore, the first appeal as of right is to this Court. See §
12-3-9, Ala.Code 1975 (“The Court of Criminal Appeals shall have
exclusive appellate jurisdiction of all . . . felonies.”). “Appellant is
constitutionally entitled to effective assistance of counsel, which includes
the filing of an appellate brief on first appeal as a matter of right.”
Johnson v. State, 584 So.2d 881, 883 (Ala.Crim.App. 1991). As we
stated in State v. Tarver, 629 So.2d at 18, also a death-penalty case, “a
criminal defendant is guaranteed one appeal from his conviction, and that
appeal is to this court.”
Recently, in Ex parte Berryhill, 801 So.2d 7, 11 (Ala. 2001), the
Alabama Supreme Court reiterated the principle that a defendant has a
153
constitutional right to counsel in his first appeal:
Historically, courts have emphasized the importance
of appellate review:
The need for forceful advocacy does not
come to an abrupt halt as the legal proceeding
moves from the trial to [the] appellate stage.
Both stages . . ., although perhaps involving
unique legal skills, require careful advocacy to
ensure that rights are not forgone and that
substantial legal and factual arguments are not
inadvertently [overlooked].
Penson v. Ohio, 488 U.S. 75, 85, 109 S.Ct. 346, 102
L.Ed.2d 300 (1988).
In bringing an appeal as of right from his
conviction, a criminal defendant is attempting
to demonstrate that the conviction, with its
consequent drastic loss of liberty, is unlawful.
To prosecute the appeal, a criminal appellant
must face an adversary proceeding that - like a
trial - is governed by intricate rules that to a
layperson would be hopelessly forbidding.
Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83
L.Ed.2d 821 (1985). Therefore, the constitutional right to
effective assistance of counsel applies to appellate
proceedings. Id., 469 U.S. at 398, 105 S.Ct. 830 (criminal
defendants have constitutional rights to effective counsel
during the first appeal as of right); see Williams v. Turpin,
87 F.3d 1204, 1209 (11th Cir. 1996).”
801 So.2d at 11.
We are aware that the majority of Alabama cases that have
154
followed Douglas are not death-penalty cases and that at the time our
decision in Watkins was released a defendant convicted of a capital
offense and sentenced to death was granted an automatic review by this
Court and that a petition for a writ of certiorari was automatically granted
by the Alabama Supreme Court. See Rule 39, Ala.R.App.P. FN.7.
However, an appeal to the Alabama Supreme Court is a second appeal
conducted after this Court has considered and addressed the issues raised
by an attorney in the brief to this Court. FN.8. The State’s obligation to
provide counsel was satisfied by providing counsel on the first appeal to
this Court. See Douglas v. California, 372 U.S. at 356, 83 S.Ct. 814;
Williams v. Turpin, 87 F.3d at 1209. Moreover, the scope of the Alabama
Supreme Court’s certiorari review is limited to determining the
correctness of this Court’s decision. See Rule 39, Ala.R.App.P. The
primary responsibility for reviewing all death-penalty convictions and
sentences is with this Court. See § 13A-5-53(a), Ala.Code 1975.
FN.7. Effective May 19, 2000, Rule 39, Ala.R.App.P., was
amended to provide that the review of death-penalty cases
by the Alabama Supreme Court is discretionary. A petition
for a writ of certiorari is no longer automatically granted in
death-penalty cases.
FN.8. Section 13A-5-53(a), Ala.Code 1975, specifically
addresses appeals in death-penalty cases, and provides, in
part: “In any case in which the death penalty is imposed, in
addition to reviewing the case for any error involving the
conviction, the Alabama Court of Criminal Appeals, subject
to review by the Alabama Supreme Court, shall also review
the propriety of the death sentence.” This Code section
places with this Court the primary responsibility for
reviewing a capital-murder conviction and death sentence.
The only provision for an automatic grant of a petition for a
writ of certiorari in the Alabama Supreme Court was Rule
39, Ala.R.App.P. That provision was never codified. The
Supreme Court pursuant, to the rule-making authority
granted it by the Alabama Constitution, amended Rule 39 to
delete the automatic-review provision of death-penalty
155
cases.
In Thomas, 511 So.2d 248, this Court addressed a claim that an
attorney’s performance in his death-penalty appeal before the United
States Supreme Court was deficient. In refusing to recognize the right to
counsel beyond that which is constitutionally required, we stated:
While we quickly recognize the apparent differences
between the two types of punishment [a sentence of death
versus a sentence of life imprisonment], we know of no
reason why the magnitude of the death sentence should
distort the guarantee of effective counsel beyond the scope
defined by the Supreme Court.
511 So.2d at 258. As the Ohio Supreme Court stated in State v. Buell, 70
Ohio St.3d 1211, 1211, 639 N.E.2d 110, 110 (1994):
[The defendant’s] 1986 appeal to [the Ohio Supreme
Court] was his second appeal. “[T]he right to appointed
counsel extends to the first appeal as of right, and no
further.” (Emphasis added.) Pennsylvania v. Finley (1987),
481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539,
545. See, also, Evitts v. Lucey (1985), 469 U.S. 387, 394,
105 S.Ct. 830, 834-835, 83 L.Ed.2d 821, 828. Having no
constitutional right to counsel on a second appeal, [the
defendant] had no constitutional right to the effective
assistance of counsel.
There is no right to counsel when pursuing a second appeal before
the Alabama Supreme Court; therefore, there is no right to the effective
assistance of counsel. Our decision in Watkins improperly expands the
holding of the Douglas court.
Moreover, we question the continued validity of our decision in
Watkins given the Alabama Supreme Court’s subsequent decision in Ex
parte Frazier, 758 So.2d 611 (Ala.1999). The Alabama Supreme Court
in Frazier abrogated in part the decision in Watkins by holding that a
156
similar Batson claim did not constitute per se ineffective assistance of
counsel. The Frazier court stated:
Frazier blames his attorneys for the fact that the
record does not permit review of the Batson issue, and he
urges us to remand this case for a new trial because his
attorneys failed to preserve this issue for review. . . . Failure
to make a record of the race or gender of persons against
whom the prosecution asserted peremptory strikes is not
per se ineffective assistance of counsel; it would constitute
ineffective assistance only if a prima facie case of
purposeful discrimination existed. See Ex parte Yelder, 575
So.2d [137] at 139 [ (Ala.1991) ].
758 So.2d at 616 (emphasis added).
Accordingly, as the Alabama Supreme Court noted in Ex parte
Frazier, the petitioner must establish a prima facie case of purposeful
discrimination. Jenkins’s only argument before the circuit court to support
this contention was that the State struck three blacks, or all of the blacks,
from the venire. Numbers alone; however, are not sufficient to establish
a prima facie of discrimination. As the Alabama Supreme Court stated in
Sharrief v. Gerlach, 798 So.2d 646 (Ala. 2001):
The [defendant’s] only objection regarding the [State’s]
strikes of women, if it can be characterized as an objection,
was to the fact that only three women were left on the jury.
However, “‘[I]t is important that the defendant come
forward with facts, not just numbers alone, when asking the
[trial] court to find a prima facie case’ of . . .
discrimination.” McElemore v. State, 798 So.2d 693, 696
(Ala.Crim.App. 2000) (quoting Mitchell v. State, 579 So.2d
45, 48 (Ala.Crim.App. 1991), in turn quoting United States
v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)).
798 So.2d at 655. FN.9.
157
FN.9. In his brief to this Court Jenkins makes other
arguments in support of this contention. However, those
arguments were not presented to the circuit court. “This
court will not consider an argument raised for the first time
on appeal; its review is limited to evidence and arguments
considered by the trial court.” Myrick v. State, 787 So.2d
713, 718 (Ala.Crim.App. 2000).
For the reasons stated above, we overrule our decision in Watkins,
632 So.2d 555. As Justice Ingram wrote in his dissenting opinion in
Watkins v. State, 632 So.2d 566 (Ala. 1994), a 5-4 decision in which a
majority of the Justices on the Alabama Supreme Court voted to quash the
writ of certiorari:
I believe that society’s expectation of its courts, under
the law and within the rules, is that we should establish
some reasonable point at which post-judgment review would
end. At least we should preclude the same issue, once
raised, reviewed, and decided, from recurring on appeal. I
believe this case would be an appropriate one in which to
establish that point.
The United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), stated that the proper standard for judging attorney
p e r f o r m a n c e
i n
r e g a r d
t o
ineffective-assistance-of-counsel-claims is “simply
reasonableness under prevailing professional norms.” 466
U.S. at 688, 104 S.Ct. at 2065. Further, it addressed the
temptation of looking backward with the knowledge of
current law:
A fair assessment of attorney
performance requires that every effort be made
to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the
158
conduct from counsel’s perspective at the time.
466 U.S. at 689, 104 S.Ct. at 2065. (Emphasis added.)
632 So.2d at 567 (Ingram, J., dissenting).
Scofield’s performance was not deficient because he failed to
ensure that the record on appeal was supplemented to support an
argument that had no legal foundation at the time the alleged error
occurred in the trial court and that was not presented to the trial court. To
hold otherwise would subject appellate counsel’s performance to a stricter
level of review than trial counsel’s performance.
Jenkins, 972 So. 2d at 123-28.
Jenkins first challenges the Alabama Court of Criminal Appeals’ holding that
“Scofield's performance was not deficient because he failed to ensure that the record
on appeal was supplemented to support an argument that had no legal foundation at the
time the alleged error occurred in the trial court and that was not presented to the trial
court.” (Doc. 48 at 91). He contends that this determination is contrary to and an
unreasonable application of clearly established Federal law because it is “predicated
on the erroneous assumption that Powers does not apply” to Jenkins’s ineffective
assistance of trial counsel claim. (Id.). However, as previously discussed, Jenkins has
cited nothing to establish that counsel striking a jury before Powers was decided, can
be found deficient for failing to raise a Powers/Batson claim at trial, simply because
Powers was decided prior to the completion of direct review of the case.
159
Jenkins further alleges that the “conclusion that Mr. Jenkins’s appellate
ineffectiveness claim ‘had no legal foundation,’” is contrary to and an unreasonable
application of clearly established Federal law, because “Powers applied to Mr.
Jenkins’s direct appeal and unambiguously held that a defendant’s race was irrelevant
to making a Batson claim.” (Id. at 92). However, the Alabama Court of Criminal
Appeals did not find that Jenkins’s appellate ineffectiveness claim had no legal
foundation. Rather, the finding was that Jenkins’s Batson claim “had no legal
foundation at the time the alleged error occurred in the trial court.” Jenkins, 972 So. 2d
at 128. This finding was not contrary to or an unreasonable application of Federal law.
Jenkins further argues that it “was also unreasonable because Alabama law already
permitted white defendants to raise Batson challenges to the exclusion of African
American jurors.” (Doc. 48 at 92). As previously discussed, there is nothing to support
a claim that Jenkins had a right under Alabama law at the time of his trial to raise a
Batson claim. This finding was not contrary to or an unreasonable application of clearly
established Federal law.
Jenkins next contends that the Alabama Court of Criminal Appeals’s
determination that the Batson claim “was not presented to the trial court” was an
unreasonable determination of the facts in light of the state court record because, he
claims, “the Batson claim was presented to the trial court.” (Id.). Jenkins claims that:
160
the CCA opinion itself acknowledges “counsel for Jenkins filed a ‘motion
to enjoin the prosecution from utilizing his peremptory challenges to
systematically exclude minorities from the jury panel.’” Jenkins II, 972
So. 2d at 122 (quoting circuit court order). Not only is the CCA finding
internally inconsistent and contradicted by the record, it ignores altogether
[sic] that counsel filed a motion for new trial on the grounds that the trial
court erred in denying this pre-trial motion. (RHCC, vol. 10, p. 188)
Consequently, the CCA’s fact findings are contrary to the state court
record and because the record is clear, the court’s determination was
unreasonable. See, e.g., Lynch v. Sec’y, Dep’t of Corr., 897 F. Supp. 2d
1277, 1303 (M.D. Fla. 2012) (finding state court’s determination that
defendant did not present evidence was an unreasonable determination of
the facts because defendant presented evidence). That counsel had raised
a Batson claim — albeit ineffectively — before and after trial underscores
how his failure to provide the appellate courts with information they
needed to rule constitutes deficient performance.
(Id. at 92-93).
This claim is without merit. Prior to trial, counsel filed a “Motion to Enjoin the
Prosecutor from Utilizing his Peremptory Challenges to Systematically Exclude
Minorities from the Jury Panel.” (R. Vol. 10, Tab 27 at 88). In the motion, counsel
noted that Jenkins is “part Mexican-blood, and is charged with killing a white person,”
and asked that the prosecution be enjoined from using peremptory challenges to
systematically exclude minorities from the jury panel. (Id.). The trial judge
acknowledged that the parties were familiar with the Batson holding, stated that he
expected the state to comply with Batson if it were applicable, and reserved ruling on
the motion until it was “raised in the proper manner at the time of the selection of the
161
jury.” (R. Vol. 1, Tab 3 at 42). However, defense counsel did not raise a Batson
objection during the selection of the jury. (R. Vol. 3 at 445-452). Although the trial
court never ruled on Jenkins’s “Motion to Enjoin the Prosecutor from Utilizing his
Peremptory Challenges to Systematically Exclude Minorities from the Jury Panel,”
Jenkins argued in a motion for new trial that the “Court erred in denying defendant’s
Motion to prohibit the State from striking minorities from the jury,” (R. Vol. 10, Tab
27 at 188). Clearly, Jenkins never made a proper Batson objection during jury
selection. His motions made prior to trial and after trial did not amount to Batson
objections. Thus, the Alabama Court of Criminal Appeals’s finding that Jenkins did not
present a Batson claim to the trial court was not an unreasonable determination of the
facts.
In raising his ineffective assistance of appellate counsel claim on appeal from the
denial of his Rule 32 petition, Jenkins relied on Watkins v. State, 632 So. 2d 555, 56061 (Ala. Crim. App. 1992).40 (Rule 32 C.R. Vol. 37, Tab 52 at 25-29). Jenkins argued
40
In Watkins, the defendant raised a Batson claim for the first time on direct appeal in a petition for
writ of certiorari to the Alabama Supreme Court, and the court elected to address the claim. Ex parte
Watkins, 509 So. 2d 1074, 1075 (Ala. 1987). The Alabama Supreme Court affirmed Watkins’s
conviction, finding that the record did not “show that the state exercised any of its peremptory
challenges to remove prospective black jurors from the venire,” and that the “record as a whole”
simply did not raise an inference that the state was engaged in the practice of purposeful
discrimination. Id. at 1076.
In a state collateral petition, Watkins argued that “counsel was ineffective on appeal because,
when asserting the Batson claim before the Alabama Supreme Court, he failed to move to supplement
162
that counsel’s failure to supplement the record to contain information necessary to
prove a Batson claim was ineffective under Watkins, which “held that counsel’s failure
to supplement the record with facts necessary to support a Batson claim, where he
knew no such facts were in the record, constitutes ineffective assistance of counsel.”
(Id. at 27) (citing Watkins v. State, 632 So. 2d 555, 560-61 (Ala. Crim. App. 1992).
The Alabama Court of Criminal Appeals overruled Watkins, finding that there is “no
right to counsel when pursuing a second appeal before the Alabama Supreme Court;
therefore, there is no right to the effective assistance of counsel. Jenkins, 972 So. 2d
at 127. The court also noted that in Ex parte Frazier, 758 So. 2d 611 (Ala. 1999), the
Alabama Supreme Court “abrogated in part the decision in Watkins by holding that a
similar Batson claim did not constitute per se ineffective assistance of counsel.” Id.
Jenkins states that:
the CCA held that its holding in Watkins - that a lawyer’s failure to
supplement the record on appeal to the ASC to support a Batson claim
constituted deficient performance, see Jenkins II, 972 So.2d at 127 - was
erroneous in light of Alabama law that a defendant has only one appeal
as a matter of right; thus, Mr. Jenkins was entitled to effective counsel
the record to show the racial composition of the venire and the race of each venireperson struck by
the prosecution, in order to factually support the Batson claim and, thus, present plain error.” Watkins
v. State, 632 So. 2d at 559. The trial court denied the claim on the merits. Id. On appeal from the
denial of Watkins’s collateral petition, the Alabama Court of Criminal Appeals concluded that “based
on the knowledge that counsel possessed or should have possessed at the time of the petitioner’s
appeal in which he raised Batson, counsel should have moved to supplement the record before the
Alabama Supreme Court, and any failure to do so was deficient performance within the meaning of
Strickland v. Washington.” Id. at 564.
163
only in his first appeal to the CCA. See id. at 126-27. FN.24.
FN.24. The CCA held that its “decision in Watkins
improperly expands the holding of [Douglas v. California,
372 U.S. 353 (1963).]” Jenkins II, 972 So. 2d at 127.
The CCA, however, was silent about Mr. Jenkins’s allegation that
appellate counsel was constitutionally ineffective for failing to supplement
the record in his first direct appeal to the CCA, and failed to address that
at the time Mr. Jenkins sought review in the ASC, that review was
mandatory and automatic. Id. at 126 n.7.
(Doc. 48 at 84-85). Jenkins argues that this ruling:
resulted in a decision about ineffective assistance of appellate counsel that
was contrary to or an unreasonable application of clearly established
Federal law because it acknowledged but did not address the fact that at
the time Mr. Jenkins sought review in the ASC, that review was
mandatory and automatic. As the CCA itself recognized in a footnote, it
was in the year 2000 that the relevant court rule was “amended to provide
that the review of death-penalty cases by the Alabama Supreme Court is
discretionary.” Jenkins II, 972 So. 2d at 126 n.7. But, at the time Mr.
Jenkins appealed to the ASC, that review was mandatory and
“automatically granted.” Id. The CCA thus unreasonably applied
Strickland because it failed to account for the relevant law at the time of
appellate counsel’s actions and instead (mis)placed emphasis on an
inapplicable case, Douglas v. California. See n.24, supra, and associated
text at 84. Its decision was also based on an unreasonable determination
of the facts because it appears to ignore the date in [sic] which ASC
review became discretionary.
(Id. at 93-94).
Jenkins’s claim is based upon his assertion that the Alabama Court of Criminal
Appeals held he was entitled to effective assistance of counsel only on his first appeal
164
to the Court of Criminal Appeals. He argues that the court failed to address his claim
that counsel was ineffective for failing to supplement the record on his first direct
appeal to the Alabama Court of Criminal Appeals, and failed to mention that when
Jenkins sought review in the Alabama Supreme Court, review in that court was
mandatory and automatic.
First, there is nothing in the Alabama Court of Criminal Appeals’s opinion to
indicate that the court found that Jenkins was not entitled to effective counsel on direct
appeal to the Alabama Supreme Court. Further, the court was fully aware that when
Jenkins sought review in the Alabama Supreme Court, review in that court was
mandatory and automatic. The court noted that Jenkins’s appeal took place from 19921993, and, as Jenkins points out, the court specifically stated that “[e]ffective May 19,
2000, Rule 39, Ala.R.App.P., was amended to provided that the review of deathpenalty cases by the Alabama Supreme Court is discretionary.” Jenkins, 972 So. 2d at
119 and 126 n.7.
The court addressed Watkins because Jenkins argued it in support of his claim.
The court overruled Watkins because the case was “an appropriate one in which to
establish” a reasonable point at which post-judgment review ends. Jenkins, 972 So. 2d
at 127. The court recognized Jenkins’s claim to be that appellate counsel was
ineffective for failing “to ensure that the record on direct appeal to this Court and on
165
appeal to the Alabama Supreme Court was supplemented to support [his] Batson
claim.” Id. at 123. The court held that counsel’s “performance was not deficient
because he failed to ensure that the record on appeal was supplemented to support an
argument that had no legal foundation at the time the alleged error occurred in the trial
court and that was not presented to the trial court.” Id. at 128.
The court never stated that it was denying Jenkins’s claim that counsel was
ineffective for failing to supplement the record on appeal to the Alabama Supreme
Court because he was not entitled to counsel when he went before that court on direct
appeal. Rather, it appears that the Alabama Court of Criminal Appeals addressed
Jenkins’s claims that counsel was ineffective for failing to supplement the record on
appeal to both the Alabama Court of Criminal Appeal and the Alabama Supreme Court.
Jenkins’s arguments that the court found he was entitled to effective counsel only on
appeal to the Court of Criminal Appeals, that the court did not address his claim that
counsel was ineffective on direct appeal to the Court of Criminal Appeals, and that the
court ignored the fact that Supreme Court review was mandatory at the time of
Jenkins’s appeal, were contrary to or an unreasonable application of clearly established
Federal law and were based on an unreasonable determination of the facts, are
baseless.
Jenkins further argues:
166
Finally, to the extent that the state court’s rejection of Mr.
Jenkins’s Batson-ineffectiveness-of-appellate-counsel claim is predicated
on the assertion of the procedural bar that Alabama recognizes “no right
to counsel” and “therefore . . . no right to the effective assistance of
counsel” “when pursuing a second appeal before the Alabama Supreme
Court,” Jenkins II, 972 So.2d at 126-27, that bar was neither firmly
established nor regularly followed. See generally Section A.1, supra, at
8-14. In particular, at the time Mr. Jenkins prosecuted his appeal, Watkins
clearly recognized a capital appellant’s right to the effective assistance of
counsel on direct appeal to the ASC, and it was only in his case some
twelve years later that the CCA reversed this decision. Therefore, the
application of this bar to reviewing the merits of this claim was not only
inconsistent but appears never to have been applied in a capital case until
a decade after Mr. Jenkins exhausted his direct appeal. Therefore, this
change in law is no barrier to addressing the merits of Mr. Jenkins’s
claim.
(Doc. 48 at 94). As previously discussed, there is nothing in the Alabama Court of
Criminal Appeals’s decision to indicate that it rejected this claim based upon a finding
that Jenkins did not have a right to counsel on appeal to the Alabama Supreme Court.
There is certainly nothing in the decision to suggest that it rejected the claim based
upon a procedural bar. This claim is without merit.
Jenkins next challenges the Alabama Court of Criminal Appeals’s holding “that
the only evidence [he] offered in support of a prima facie showing was the number of
African Americans the State struck.” (Id. at 85). He claims that this holding involved
an unreasonable application of clearly established Federal law, an unreasonable
determination of the facts in light of the evidence presented to the state court under 28
167
U.S.C. § 2254(d)(2) and/or was based upon a clearly erroneous determination of the
facts under 28 U.S.C. § 2254(e)(1), because his allegations about counsel’s failure to
preserve the record of the prima facie case were not limited to the prosecution’s
removal of all the blacks from the jury. (Id. at 85, 96). He claims that “[u]nder Batson,
the court ‘should consider all relevant circumstances’ that support an inference of
discrimination,” but the Alabama Court of Criminal Appeals, “like every state court
before it - did not consider all of the circumstances.” (Id. at 96).
When Jenkins raised this claim in his amended Rule 32 petition, he argued that:
Trial counsel failed to supplement the record before the Alabama
Court of Criminal Appeals and the Alabama Supreme Court with facts to
show that the prosecution removed all of the African-Americans from the
venire to support his Batson argument. See Watkins v. State, 632 So.2d
555, 559-63 (Ala.Cr.App. 1992) (death row inmate's case remanded for
hearing to determine merits of Batson claim raised in state postconviction
proceeding where court concludes that petitioner was deprived the
effective assistance of counsel when appellate counsel failed to
supplement the record on appeal to reflect facts to support the claim).
(Rule 32 C.R. Vol. 18, Tab 47 at 358-59). In his brief, Jenkins argued:
Mr. Jenkins was also denied the effective assistance of counsel
during jury selection because trial counsel failed to object to the
prosecution's systematic removal of all the qualified prospective jurors
who were African-American. See Ex parte Yelder, 575 So. 2d 137, 139
(Ala. 1991) ("failure of trial counsel to make a timely Batson objection to
a prima facie case of purposeful discrimination by the state in the jury
selection process through its use of peremptory challenges is
presumptively prejudicial to a defendant"), cert. denied, 502 U.S. 898
(1991). The exercise of a single peremptory challenge by the prosecution
168
against an African-American venireperson warrants a Batson hearing.
Huntley v. State, 627 So. 2d 1013, 1014 (Ala. 1992). See United States
v. Allison, 908 F.2d 1531 (11th Cir. 1990), cert. denied, 500 U.S. 904
(1991) ("Under Batson, the striking of one black juror for a racial reason
violates the Equal Protection Clause"). Trial counsel's error was
compounded by his failure to insure that the record reflected the race of
all prospective jurors because that oversight prevented the Alabama
appellate courts from reviewing the violation, see Jenkins v. State, 627
So. 2d at 1042 ("The record simply does not support an inference of plain
error on the alleged Batson violation. (citing Ex parte Watkins, 509 So.
2d 1074 (Ala.), cert. denied, 484 U.S. 918 (1987))"), and entitles Mr.
Jenkins to have this Court to grant his petition. Watkins v. State, 632 So.
2d 555, 559-63 (Ala. Cr. App. 1992).
At Mr. Jenkins' capital trial, voir dire of five panels of prospective
jurors was completed in less than one day. On March 13, 1991, the
parties selected the jury for Mr. Jenkins' trial by alternating peremptory
challenges to remove jurors from the remaining venire until only twelve
jurors remained. (R. 445-50) During the selection process, the prosecution
exercised peremptory challenges to remove juror number twenty-nine,
Lesley D. Sanders, juror number forty, James F. Cunningham, and juror
number forty-five, David Jones. (C. 111) Although (as will be shown)
Cunningham, Sanders and Jones are all African-Americans, qualified to
serve on this capital jury, trial counsel failed to object to their removal by
the prosecution or to insure that the record reflected the race of all
prospective jurors. (R. 445-50; Ev. 329) The prosecution's systematic
removal of all qualified African-American individuals from the venire
violated Mr. Jenkins right to a fair trial and equal protection under Batson
v. Kentucky, 476 U.S. 79 (1986), and Ex parte Branch, 526 So. 2d 609
(Ala. 1987).
The Venire Lists
At the evidentiary hearing on his Rule 32 petition, Mr. Jenkins
introduced copies of the original venire lists from the trial as Petitioner's
Exhibits Number 2 and 3. (Ev. 292, 296) These venire lists are not
included in the original appellate record. Petitioner’s Exhibit 2 consists of
169
four separate documents, in the following order: (1) a one-page strike
sheet noting two disqualified jurors; (2) an eleven-page venire list dated
October 30, 1989; (3) a one-page strike sheet denoting the parties
peremptory challenges and the final jury; and (4) a twelve-page venire list
dated February 19, 1991. (Pet. Ex. #2.) Trial counsel identified the two
strike sheets in Petitioner's Exhibit 2 as the actual strike sheets used by
the defense in striking a jury; the second of which was the actual list the
defense "struck from." (Pet. Ex. #2, at 13; Ev. 292) Petitioner [sic]
Exhibit 3 is a ten-page venire list dated March 12, 1991. (Pet. Ex. #3; Ev.
292-93) Trial counsel testified that Petitioner's Exhibits 2 and 3 are copies
of the actual venire lists taken from his own file. (Ev. 292, 295)
The venire lists are alphabatized [sic] lists of all persons originally
included in the group of individuals eligible to be summoned for jury
service for Mr. Jenkins trial. (Ev. 294) In addition to the prospective
jurors names, the venire lists also include the individual's birthdate, age,
address, and gender. (Pet. Ex. #2 & 3) Importantly, each of the venire
lists also includes the race of each prospective juror. According to the
venire list dated February 18, 1991, and introduced as part of Petitioner's
Exhibit 2, James F. Cunningham and David Jones are African-American
men. (Pet. Ex. #2) Similarly, according to the venire list dated March 12,
1991, and introduced as Petitioner's Exhibit 3, Lesley D. Sanders is an
African-American man. (Pet. Ex. #3) Comparison of the final strike sheet
with the venire list reveals that Cunningham, Jones and Sanders were the
only African-Americans remaining on the venire following the exercise of
cause strikes. (c. 111; Pet. Ex. #2 & 3)
During the evidentiary hearing, trial counsel was asked about his
failure to raise an objection to the prosecution's systematic removal of
African-Americans. As the following exchange demonstrates, trial
counsel's failure to raise the objection was not strategic.
[Counsel for Petitioner]: Following the jury selection in this
case, did you raise a Batson objection?
[Trial Counsel]: I don't recall making a Batson objection
after the jury was struck and before they were sworn.
170
[Counsel for Petitioner]: Your failure to make a Batson
objection, was there any strategic decision relating to that?
[Trial Counsel]: No.
(Ev. 329)
In sum, it is indisputable that the prosecution removed all of the
qualified African-Americans from the jury venire prior to Mr. Jenkins
trial, and that such unconstitutional conduct resulted in an all-white jury.
(C. 111; R. 450; Pet. Ex. #2 & 3; Ev. 296) Equally undisputed is the fact
that trial counsel failed to object to this violation, failed to preserve the
record for purposes of appeal and that these failures lacked any strategic
purpose. (Ev. 329)
In death penalty cases, Batson errors constitute "plain error," and
are reviewable on appeal even if trial counsel failed to lodge a proper
objection at trial See, e.g., Ex parte Adkins, 600 So. 2d 1067 (Ala. 1992);
Ex parte Bankhead, 585 So. 2d 112, 117 (Ala. 1992); Guthrie v. State,
616 So. 2d 913 (Ala. Cr. App. 1992), on return to remand, 616 So. 2d
914 (Ala. Cr. App. 1993). 'When raised in the context of ineffective
assistance claims, Alabama Courts have assumed that prima facie Batson
violations are presumptively prejudicial to the defendants, and have
remanded for hearings on the merits of the claims. See Ex parte Yelder,
575 So. 2d at 138 ("failure of trial counsel to make timely Batson
objection to prima facie case of purposeful discrimination . . . is
presumptively prejudicial . . . and we remand the case with directions to
remand it to the trial court for a Batson hearing"); Taylor v. State, 598 So.
2d 1056 (Ala. Cr. App. 1992) (court grants pro se petitioner granted
Batson hearing where trial counsel was ineffective for raising objection
at trial); Winchester v. State, 580 So. 2d 749 (Ala. Cr. App. 1991)
(postconviction claim of trial counsel's ineffectiveness in failing to raise
Batson objection requires remand where prosecution removed all
African-Americans from venire; "Winchester's allegation of ineffective
counsel is not precluded on the grounds that it was raised or addressed at
trial or on appeal or that it could have been raised but was not raised at
trial or on appeal, Rule 20.2(a)(2)-(5)").
171
In Ex parte Yelder, the Alabama Supreme Court considered the
identical issue Mr. Jenkins raises here: whether a criminal defendant is
denied the effective assistance of counsel when his trial attorney fails to
make a Batson objection when the prosecution disciminates [sic] in the
exercise of its peremptory challenges. The court concluded that counsel's
failure is presumptively prejudicial:
We adopt the dissenting opinion of Judge Bowen and
hold that the failure of trial counsel to make a timely Batson
objection to a prima facie case of purposeful discrimination
by the State in the jury selection process through its use of
peremptory challenges is presumptively prejudicial to a
defendant. Accordingly, we reverse the judgment of the
Court of Appeals to the extent it holds to the contrary . . .
and we remand the case with directions to remand it to the
trial court for a Batson hearing.
Yelder, 575 So. 2d at 138. Under the circumstances of this case, and
pursuant to Batson, Branch, and Yelder, Mr. Jenkins is due to have his
petition granted because trial counsel's failure to object to the
prosecution's discriminatory use of peremptory challenges is presumed to
have prejudiced him.
(Rule 32 C.R. Vol. 18, Tab 46 at 225-230) (footnotes omitted).
In dismissing the claim, the Rule 32 court specifically noted that:
[t]he only evidence Jenkins has asserted is that the State removed three
African-Americans from the venire. A defendant must offer some
evidence in addition to the striking of blacks that would raise an inference
of discrimination. Jenkins, who has the burden of proof, has not presented
sufficient evidence to establish a finding of prima facie discrimination.
(Rule 32 C.R. Vol. 45, Tab 77 at 312).
It was not until Jenkins’s brief on appeal from the denial of his Rule 32 petition
172
that he argued further evidence in support of a prima facie case of discrimination. In
his brief, Jenkins argued that the heterogeneity of the group, the state’s pattern of
strikes, the manner of the state’s voir dire, the disparate treatment of blacks, the
disparate impact on blacks, and the state’s removal of all or most black people raise an
inference of intentional race discrimination. (Rule 32 C.R. Vol. 37, Tab 52 at 15-21).
In its opinion, the Alabama Court of Criminal Appeals stated that “Jenkins’s only
argument before the circuit court to support this contention was that the State struck
three blacks, or all of the blacks, from the venire.” Jenkins, 972 So. 2d at 127. The
court specifically noted that Jenkins made other arguments in his appellate brief, but
refused to consider them since they were not presented to the Rule 32 court:
In his brief to this Court Jenkins makes other arguments in support
of this contention. However, those arguments were not presented to the
circuit court. “This court will not consider an argument raised for the first
time on appeal; its review is limited to evidence and arguments
considered by the trial court.” Myrick v. State, 787 So.2d 713, 718
(Ala.Crim.App. 2000).
Id. at 127 n.9.
As the court stated, Jenkins’s only argument before the Rule 32 court was that
the state struck all three of the blacks from the venire. Id. at 127. The court recognized
that Jenkins made other arguments in his brief on appeal, but declined to consider
arguments that had not been raised in and considered by the trial court. Id. at 127 n.9.
173
Thus, the court’s statement was not an unreasonable determination of the facts in light
of the evidence presented to the state court under 28 U.S.C. § 2254(d)(2) and was not
based upon a clearly erroneous determination of the facts under 28 U.S.C. §
2254(e)(1).
Jenkins further challenges the Alabama Court of Criminal Appeals’s finding that
“numbers alone” were not sufficient to raise an inference of discrimination. (Doc. 48
at 85, 95). He argues that this “ruling is an unreasonable application of clearly
established Federal law for two reasons: (1) it incorrectly reads Batson to require more
than numbers to raise an inference of discrimination; and (2) it turns on a finding that
‘numbers’ provide the only evidence in this case—a finding that is not supported by a
review of ‘all relevant circumstances’ that Batson itself requires.” (Doc. 48 at 95).
Jenkins first argues that “under Batson, numbers alone can suffice to support a
prima facie case.” (Id.). He states that in Batson, the Supreme Court “explicitly
recognized that ‘a “pattern” of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.’” (Id. at 95-96) (quoting
Batson, 476 U.S. at 97) (emphasis added). He argues that the Alabama Court of
Criminal Appeals erroneously concluded that Batson created a “bright-line threshold
for raising an inference of discrimination,” and that because “numbers alone are all the
Court considered in Batson, the CCA’s holding that they can never suffice to make a
174
prima facie case is an unreasonable application of clearly established Federal law.” (Id.
at 96).
However, the Court in Batson did not hold that numbers alone were sufficient
to prove a prima facie case of discrimination in jury selection. In Batson, the Court
discussed the relevant factors a defendant could argue in attempting to establish a
prima facie case of racial discrimination. The Court stated:
[A] defendant may establish a prima facie case of
purposeful discrimination in selection of the petit jury solely
on evidence concerning the prosecutor's exercise of
peremptory challenges at the defendant's trial. To establish
such a case, the defendant first must show that he is a
member of a cognizable racial group, Castaneda v. Partida,
supra, 430 U.S. at 494, 97 S.Ct. at 1280, and that the
prosecutor has exercised peremptory challenges to remove
from the venire members of the defendant's race. Second,
the defendant is entitled to rely on the fact, as to which there
can be no dispute, that peremptory challenges constitute a
jury selection practice that permits “those to discriminate
who are of a mind to discriminate.” Avery v. Georgia, 345
U.S. at 562, 73 S.Ct. at 89. Finally, the defendant must
show that these facts and any other relevant circumstances
raise an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account of their
race. This combination of factors in the empaneling of the
petit jury, as in the selection of the venire, raises the
necessary inference of purposeful discrimination.
In deciding whether the defendant has made the
requisite showing, the trial court should consider all relevant
circumstances. For example, a “pattern” of strikes against
black jurors included in the particular venire might give rise
175
to an inference of discrimination. Similarly, the prosecutor's
questions and statements during voir dire examination and
in exercising his challenges may support or refute an
inference of discriminatory purpose. These examples are
merely illustrative. We have confidence that trial judges,
experienced in supervising voir dire, will be able to decide
if the circumstances concerning the prosecutor's use of
peremptory challenges creates a prima facie case of
discrimination against black jurors.
Batson, 476 U.S. 79, 96–97 (1986). The burden of proof rests on the petitioner to
establish a factual basis for the relief he seeks. Hill v. Linahan, 697 F.2d 1032, 1034
(11th Cir. 1983); Corn v. Zant, 708 F.2d 549, reh'g denied, 714 F.2d 159 (11th Cir.
1983), cert. denied, 467 U.S. 1220 (1984).
Jenkins’s only argument in support of his allegation of purposeful discrimination
in the selection of the jury, was that the state “struck three blacks, or all of the blacks,
from the venire.41 Jenkins, 972 So. 2d at 127. As the Eleventh Circuit Court of Appeals
has held:
the prima facie case determination is not to be based on numbers alone
but is to be made in light of the totality of the circumstances. Johnson v.
California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129
(2005) (the defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose”) (quoting Batson, 476 U.S. at 93–94, 106 S.Ct. at 1712);
Ochoa–Vasquez, 428 F.3d at 1044 (in order to determine whether a prima
41
As previously noted, Jenkins raised additional arguments in his brief on appeal from the denial of
his Rule 32 petition, but the Alabama Court of Criminal Appeals refused to consider them since they
were raised for the first time on appeal. Jenkins, 972 So. 2d at 127 n.9.
176
facie case has been established “courts must consider all relevant
circumstances”).
United States v. Hill, 643 F.3d 807, 839 (11th Cir. 2011). While this “pattern” of
strikes against black jurors might give rise to an inference of discriminatory purpose,
Jenkins identified no other relevant circumstance that would be material to whether the
he established a prima facie case of discrimination. These facts, without more, are
insufficient to establish a prima facie case of discrimination under Batson. Thus, the
Alabama Court of Criminal Appeals’s holding that numbers alone are not sufficient to
establish a prima facie case of discrimination is not an objectively unreasonable
application of clearly established Federal law.
Jenkins also claims that the court’s failure to consider “all relevant
circumstances” that support an inference of discrimination was “an additional
unreasonable application of clearly established Federal law.” (Doc. 48 at 96). He
reasons that since Batson instructed that the court “‘should consider all relevant
circumstances’ that support an inference of discrimination,” it was unreasonable for the
court not to consider “several other circumstances that constitute evidence in support
of a prima facie case of discrimination.” (Id.). However, the court made it clear that it
was not considering the other circumstances argued by Jenkins on appeal, because he
had waived the right to argue those circumstances on appeal, by failing to present them
177
to the trial court.42 Because those arguments were not properly before the court, it was
not an unreasonable application of Batson for the court to decline to consider them.
This claim is without merit.
Because Jenkins has failed to establish that the Alabama Court of Criminal
Appeals’ finding --- that counsel’s performance on appeal was not deficient --- was
contrary to or an unreasonable application of Federal law, or was based on an
unreasonable determination of the facts, it is unnecessary to address his argument that
he was prejudiced by counsel’s performance.
c.
Prejudice
Finally, Jenkins alleges that the Alabama Court of Criminal Appeals
“erroneously resolved the Strickland question of whether the attorneys’ deficient
performance at trial and on appeal ‘prejudiced the defense.’” (Doc. 48 at 98). He
42
As the court stated, appellate courts “will not consider an argument raised for the first time on
appeal; its review is limited to evidence and arguments considered by the trial court.” Jenkins, 972
So. 2d at 127 n.9 (quoting Myrick v. State, 787 So. 2d 713, 718 (Ala. Crim. App. 2000). See also
Eastland v. State, 677 So. 3d 1275, 1276 (Ala. Crim. App. 1996) (same); Abbott v. Hurst, 643 So.2d
589, 593 (Ala. 1994) (same); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) (same);
Rodriguez–Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326, 1328 (Ala. 1991) (“This
Court cannot put a trial court in error for failing to consider a matter which, according to the record,
was not presented to, nor decided by it.”); Defore v. Bourjois, Inc., 105 So.2d 846, 847 (1958) (“The
functions of this court in its appellate character are strictly confined to the action of trial courts upon
questions which are presented to and ruled upon by them. We cannot put a trial court in error for
failure to rule on a matter which, according to the record, was not presented to, nor decided by him
. . . ; or as otherwise expressed, ‘Courts of last resort are without authority to put the lower court
in error, in the absence of some ruling of such court showing or containing error.’”).
178
contends that “[c]ontrary to the circuit court’s summary conclusion that there was ‘no
reasonable probability’ of a different outcome, Mr. Jenkins’s case provides ample
evidence to support a prima facie showing of discrimination at trial and on appeal.”
(Id.). Jenkins reasons that, if counsel’s performance had been adequate, both the trial
court and the appellate courts would have had considered his Batson claim “in light of
‘all relevant circumstances.’” (Id. at 99). However, as discussed above, Jenkins has not
shown that the Alabama Court of Criminal Appeals’ determinations that counsel were
not constitutionally deficient was contrary to or involved an unreasonable application
of Federal law, or that it was an unreasonable application of the facts. Because Jenkins
is unable to satisfy the performance prong of Strickland, the court need not address the
prejudice prong. Strickland, 466 U.S. at 697.
4.
Counsel’s Deficient Performance Deprived Mr. Jenkins of the
Effective Assistance of Counsel during the Guilt Phase
Jenkins contends that trial counsel deprived him of effective assistance of
counsel during the guilt phase of his trial and that counsel’s errors “‘were so serious
as to deprive [him] of a fair trial, a trial whose result was reliable.’ Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993).” (Doc. 12 at 65). Jenkins divides this claim into
multiple sub-claims of ineffective assistance of counsel, specifically: lack of sufficient
funding; failure to object to original co-counsel’s conflict of interest; failure to
179
interview Sarah Harris, Doug Thrash and Frieda Vines; failure to discover that another
suspect was detained and questioned in connection with the victim’s murder; failure to
conduct appropriate voir dire; failure to object to the prosecutor’s misconduct; failure
to object to the trial court’s misstatements of the law; failure to ensure that the trial
court’s errors were preserved for appellate review; and failure to present a coherent and
consistent theory of defense. Jenkins’s subclaims will be addressed separately.
a.
Lack of sufficient funding
Jenkins claims that “[i]n part, counsel’s ineffectiveness was the product of the
grossly insufficient funding available for defense counsel in a capital case.” (Doc. 12
at 66). Specifically, he argues:
At the time of Mr. Jenkins’s trial, Alabama law provided that
court-appointed attorneys in capital cases could not be compensated more
than $1,000 for out-of-court work for trial, based on a $20 hourly rate.
Ala. Code § 15-12-21 (1975). Mr. Jenkins’s counsel received no
compensation for out-of-court work in excess of fifty hours, and were
compensated at rates far below market level even for the time they
worked.
As a growing number of courts have recognized, the inadequate
and statutorily limited compensation constitutes an unconstitutional taking
of private property by denying just compensation, thus violating the
separation of powers doctrine. See May v. State, 672 So.2d 1310 (Ala.
1995) (Maddox, J., concurring specially) (endorsing the position that
inadequate compensation constitutes an improper taking); Makemson v.
Martin County, 491 So.2d 1109, 1115 (Fla. 1986) (holding $3,500
compensation limit in capital trial violates separation of powers and
effective assistance of counsel mandates). The practice of curtailing
180
spending also discriminates against indigent capital defendants by
depriving them of their right to the effective assistance of counsel, in
violation of the guarantee of due process and equal protection under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution. The state court adjudication of this claim resulted in a
decision that was contrary to, and involved an unreasonable application
of, clearly established law. The state court adjudication of the claim was
also based on an unreasonable determination of the facts.
(Id. at 66-67).
The respondent maintains in his answer that this claim is procedurally barred
from review in this court because Jenkins failed to raise the claim at trial, or on direct
appeal, or in collateral proceedings. (Doc. 20 at 55-57). Despite arguing in his petition
that the state court’s adjudication of this claim was contrary to and involved an
unreasonable application of Federal law, and was based on an unreasonable
determination of the facts, Jenkins argues in his brief that he “did not raise this issue
in the state court.” (Doc. 35 at 5).
In its amended answer, the state reverses course, arguing that Jenkins did raise
the claim in state court:
Petitioner Jenkins curiously and mistakenly contends that he did not
raise that claim in state court. Doc. 35 at 5. The record reveals that
Jenkins implicitly raised that claim in his amended Rule 32 petition –
(C.R2. 355-356, 360.) – and that he clearly raised that claim on pages 64
and 152 in his opening brief before the Court of Criminal Appeals on Rule
32 appeal. Although neither the circuit court nor the Court of Criminal
Appeals expressly addressed that claim, this Court must presume that
those courts adjudicated Jenkins’s claim on the merits. See, e.g., Johnson
181
v. Williams, 133 S. Ct. 1088, 1096 (2013) (“When a state court rejects a
federal claim without expressly addressing that claim, a federal habeas
court must presume that the federal claim was adjudicated on the merits
– but that presumption can in some limited circumstances be rebutted.”);
Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (“Where a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing that there was no reasonable basis
for the state court to deny relief.”).
(Doc. 40 at 25-26).
Although the state maintains that Jenkins “implicitly” raised this claim in his
amended Rule 32 petition, the claim was not raised in that petition.43 However, the
claim was raised on appeal from the denial of the Rule 32 petition. In that appeal,
Jenkins argued:
XVI. THE INADEQUATE COMPENSATION OF TRIAL
COUNSEL DEPRIVED MR. JENKINS OF HIS RIGHT
TO COUNSEL.
Mr. Jenkins was deprived of his constitutional right to the effective
assistance of counsel due to the unconscionably low limitations placed on
fees paid to capital counsel pursuant to Alabama Code § 15-12-21.
Representation of capital defendants requires mastery of a complex and
highly specialized body of law and procedure, aw well as extensive
investigation into the particulars of each case and the history of the
accused. Alabama's limitations on compensation discourage
43
The state cites pages 355-56 and 360 of the amended Rule 32 petition as the pages on which
Jenkins “implicitly” raised the claim that counsel were ineffective in part because of inadequate state
funding. However, the claims on those pages involving funding are claims that counsel failed to utilize
funds provided by the court to retain a private investigator, a forensic expert, and mental health
experts. (Rule 32 C.R. Vol. 18, Tab 47 at 355-56, 360). There is nothing on those pages suggesting
or implying that funding was inadequate.
182
representation of indigent capital defendants and effectively reduces the
quality of legal representation provided to such defendants by
court-appointed attorneys, as was the case here. As previously noted, Mr.
Jenkins was represented by two attorneys who lacked the necessary
qualifications to represent him in his capital trial. Moreover, the severe
limitations imposed by the statute on compensation even for these
unqualified lawyers insured that no investigation was done. The
confluence of the unconscionable compensation and unqualified counsel
deprived Mr. Jenkins of his right to counsel and his right to a fair and
reliable trial, and requires reversal of his conviction and death sentence.
(Rule 32 C.R. Vol. 37, Tab 52 at 154).
In response, the state argued that this claim was procedurally barred from review
because Jenkins did not raise the claim in his amended Rule 32 petition:
Issue XVI, the claim of error that trial counsel was inadequately
compensated, was not contained in Jenkins’s Amended Petition and
should, therefore, not be considered by this Court. Should this Court
determine to address it, however, this claim is barred from review on Rule
32 for the following reasons: it could have been, but was not, raised at
trial, Rule 32.2(a)(3); It could have been, but was not, raised on appeal,
Rule 32.2(a)(5).
(Rule 32 C.R. Vol. 38, Tab 53 at 132). Jenkins argued in his reply brief on appeal that
the claim was not procedurally barred:
Appellee assert[s] that a majority of Mr. Jenkins’s claims for relief
are barred from review by Rule 32. Mr. Jenkins disagrees. Each of these
claims was sufficiently pleaded, and the application of procedural bars is
not only error of fact and law, since similarly situated petitioners have not
been so barred, but would constitute a denial of fundamental fairness. As
to arguments that Appellee asserts are barred because they were
previously raised, at trial or on direct appeal, Mr. Jenkins disagrees and
has demonstrated that the arguments are fundamentally different, or that
183
the earlier claims were incomplete.
(Rule 32 C.R., Vol. 39, Tab 54 at 38).
The Alabama Court of Criminal Appeals did not address this claim in its opinion
affirming the Rule 32 court’s denial of Jenkins’s petition. In his application for
rehearing in the Alabama Court of Criminal Appeals, Jenkins argued that “[t]he Court’s
opinion does not address issue XVI, and therefore, the Court should reconsider that
issue and grant relief.” (Rule 32 C.R. Vol. 39, Tab 59 at 60). The court denied the
application for rehearing. Jenkins, 972 So. 2d 111. In his petition for a writ of
certiorari, Jenkins argued:
This Court should grant Mr. Jenkins's petition for writ of certiorari
under Rule 39(a) (1) (D) because the Court of Criminal Appeals did not
address his claim that the statutory compensation for attorneys rendered
counsel ineffective. At the time of Mr. Jenkins's trial, court-appointed
attorneys in Alabama were limited to a maximum of $1000 for
out-of-court trial preparation for each phase of the capital trial, based on
a $20 per hour rate in capital trials. ALA. CODE §15-12-21; Ex parte
Grayson, 479 So. 2d 76, 79-80 (Ala.), cert. denied sub nom, 474 U.S.
865 (1985). Because the compensation scheme under which original
counsel was forced to work curtailed Mr. Jenkins's right to effective
assistance of counsel, Strickland, 466 U.S. 668, this Court's review is
warranted.
(Rule 32 C.R. Vol. 40, Tab 60 at 56-57). In his brief in support of his certiorari
petition, Jenkins argued:
The State of Alabama denied Mr. Jenkins effective assistance of
counsel, in part, because of the insufficient funds provided for
184
court-appointed attorneys in capital cases. At the time of Mr. Jenkins's
capital trial, Ala. Code § 15-12-21 limited court appointed attorneys
trying capital cases to a maximum of $1000 for out-of-court trial
preparation for each phase of the capital trial, based on a $20 per hour
rate. See Ex parte Grayson, 479 So. 2d 76, 79-80 (Ala.), cert. denied sub
nom, Grayson v. Alabama, 474 U.S. 865 (1985). As a result, the State
denied trial counsel any compensation for his work over fifty out-of-court
hours.
"It is well established that the Sixth Amendment guarantees to
criminal defendants not only the right to assistance of counsel, but
requires that assistance to be legally effective." Walthrop v. State, 506 So.
2d 273, 275 (Miss. 1987); Strickland, 466 U.S. 668; Williams, 529 U.S.
362. Had counsel been better compensated by the State of Alabama, they
would have been paid to fully investigate the case, talk to all the State's
witnesses before the trial, amass information on the members of Mr.
Jenkins's venire to aid in jury selection, argue and present the defense
case to the jury, thoroughly investigate and present mitigating evidence,
and would have been better prepared at trial and been prepared to
factually and legally address the State's improprieties. Without adequate
funding, the time that counsel was capable of devoting to this case was
severely restricted, and this restriction was a direct causative factor of
counsel's ineffectiveness.
This court should find that the severe compensation limitations
pose an unconstitutional taking of private property by denying just
compensation, violate the separation of powers doctrine, arbitrarily and
unreasonably deny indigent capital defendants their constitutional right to
effective assistance of counsel, and violate the Equal Protection Clause.
See May v. State, 672 So. 2d 1310 (Ala. 1995) (Maddox, J., concurring
specially); Makemson v. Martin County, 491 So. 2d 1109, 1115 (Fla.
1986), cert. denied, 479 U.S. 1043 (1987); DeLisio v. Alaska Superior
Court, 740 P.2d 437, 443 (Alaska 1987). The compensation of counsel
at trial and at the penalty phases was grossly inadequate, and greatly
contributed to the ineffective assistance of counsel Mr. Jenkins received
during his capital trial and penalty phases. Strickland, 466 U.S. 668.
185
(Rule 32 C.R. Vol. 40, Tab 61 at 105-06). The Alabama Supreme Court “affirmed the
judgment of the Court of Criminal Appeals insofar as it affirmed the trial court’s denial
of the other claims44 presented in Jenkins’s Rule 32 petition.” Ex parte Jenkins, 972
So. 2d at 165.
“When a state court decision summarily rejects without discussion all the claims
raised by a defendant, including a federal claim subsequently pressed in federal court,
the federal habeas court must presume, subject to rebuttal, that the federal claim was
adjudicated on the merits.” Viers v. Warden, 605 F. App’x 933, 941 (11th Cir. 2015),
cert. denied sub nom. Viers v. Shepard, 136 S. Ct. 829 (2016), reh’g denied, 136 S.
Ct. 1488 (2016) (citing Harrington v. Richter, 562 U.S. 86, 97–100 (2011)). The
Supreme Court has extended the Richter presumption to cases “when a state-court
opinion addresses some but not all of a defendant’s claims.” Johnson v. Williams, 133
S.Ct. 1088, 1094 (2013). The Johnson Court “observed that there are good reasons
why state courts do not address every single argument made by a defendant, including
‘instances in which a state court may simply regard a claim as too insubstantial to merit
discussion.’” Lee v. Comm'r, Alabama Dep't of Corr., 726 F.3d 1172, 1212 (11th Cir.
2013), cert. denied sub nom. Lee v. Thomas, 134 S.Ct. 1542 (2014) (quoting Johnson,
44
The court reversed the appellate court’s judgment on the juror misconduct claim, remanding that
claim for further proceedings. Ex parte Jenkins, 972 So. 2d at 165.
186
133 S.Ct. at 1095). A petitioner may rebut the presumption of an adjudication on the
merits if “the evidence leads very clearly to the conclusion that a federal claim was
inadvertently overlooked in state court.” Johnson, 133 S. Ct. at 1097.
Jenkins clearly raised this claim on appeal from the denial of his Rule 32 petition.
Although the Alabama Court of Criminal Appeals addressed the merits of other claims
raised in the appeal, and found other claims to be procedurally barred, that court did
not expressly address Jenkins’s claim that his trial counsel were ineffective due to
allegedly inadequate compensation available to court appointed counsel in capital
cases. Jenkins has offered nothing to suggest that the Alabama Court of Criminal
Appeals inadvertently overlooked this claim. Thus, pursuant to Johnson, this court
presumes that the Alabama Court of Criminal Appeals addressed the claim on the
merits.
Jenkins claims that the “grossly insufficient funding” available to defense counsel
in capital cases constitutes an “unconstitutional taking of private property by denying
just compensation, thus violating the separation of powers doctrine,” and deprives
capital defendants of their right to “effective assistance of counsel, in violation of the
guarantee of due process and equal protection under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.” (Doc. 12 at 66-67). Jenkins
lacks standing to assert a claim for the loss of counsel's property by virtue of an
187
unconstitutional taking. Jenkins was not denied just compensation. Rather, his lawyers
labored under the severe compensation caps, perhaps depriving them of fair
compensation for their work. Similarly, even if the compensation caps amount to a
violation of the separation of powers doctrine, and the court does not believe that they
do, Jenkins has no standing to object to it. As with the takings claim, Jenkins's lawyers
suffered any injury caused by the allegedly inadequate compensation, not Jenkins.
Thus, the attorneys, not Jenkins, would have standing to assert such a claim.
Finally, Jenkins's due process and equal protection claims seem to assert that the
compensation cap deprives him and other indigent defendants of due process and equal
protection because the cap necessarily results in a denial of effective assistance of
counsel. This claim is nothing more than a free-floating claim of ineffective assistance
of counsel. That will not do. Under Strickland, Jenkins must establish that his counsel
was constitutionally ineffective and that he was actually prejudiced thereby. Strickland
v. Washington, 466 U.S. 668, 690, 693 (1984); see also United States v. Cronic, 466
U.S. 648, 658–59 n.26 (1984)(“Apart from circumstances [of the complete denial of
counsel], however, there is generally no basis for finding a Sixth Amendment violation
unless the accused can show how specific errors of counsel undermined the reliability
of the finding of guilt.”) (citations omitted). The Strickland Court wrote:
A convicted defendant making a claim of ineffective assistance
188
must identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent
assistance. In making that determination, the court should keep in mind
that counsel's function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the particular case.
Strickland, 466 U.S. at 690. Thus, Jenkins’s claim that compensation caps hindered the
ability of counsel to represent him must be accompanied by reference to specific errors
or shortcomings purportedly caused by the allegedly inadequate funding. It is not and
accordingly fails. As the district court for the Southern District of Alabama has held:
Petitioner argues that counsel was ineffective “in part” due to
“grossly insufficient funding available for defense counsel in capital
cases.” Am. Pet. ¶¶ 28–30. Smith pleads no facts in support of this claim.
Instead, his argument is based on the assumption that counsel was ipso
facto inadequate because, in Smith's opinion, Alabama inadequately
compensated his attorneys. But Smith's conclusion does not follow. Other
capital defendants in this state have made similar claims based on
Alabama's statutory scheme. See, e.g., Hallford v. Culliver, 379
F.Supp.2d 1232, 1279 (M.D. Ala. 2004) (“The essence of [Petitioner]'s
argument becomes simply that the court ought to presume counsel could
not provide constitutionally adequate representation because of the
inadequate compensation.”), aff'd, 459 F.3d 1193 (11th Cir. 2006).
However, even if the Court were to agree that the compensation provided
to defense counsel in death cases in Alabama is woefully inadequate,
“that fact is insufficient as a matter of law to overcome the presumption
of effectiveness which attends the performance of counsel.” [Hallford,
379 F.Supp.2d at 1279.] Whereas “attorneys are expected to competently
represent indigent clients” regardless of how much or little they are paid,
See id. (citing Waters v. Kemp, 845 F.2d 260, 263 (11th Cir. 1988)), and
whereas Petitioner has pled no facts to rebut that presumption, the Court
does not find that counsel's performance was deficient and concludes that
189
no habeas relief is due Petitioner on his inadequate compensation-based
claim.
Smith v. Thomas, Civil Action No. 05–0474–CG–M, 2013 WL 5446032, *11 (S.D.
Ala. Sept. 30, 2013) (rev’d on other grounds sub nom. Smith v. Campbell, 620 Fed.
Appx. 734 (11th Cir. 2015) (footnote omitted).
Like the petitioner in Smith v. Thomas, Jenkins has alleged counsel were
ineffective “in part” due to inadequate funding but . Additionally, he, too, he has failed
to allege a specific connection between the inadequate funding and the allegedly
deficient performance of his trial counsel. Instead, Jenkins complains about the below
market hourly compensation and the 50–hour cap for out-of-court work on his case.
However, he offers absolutely nothing to indicate that counsel’s performance was
substandard due to insufficient funding. Because Jenkins has failed to connect the
allegedly insufficient funding to any deficiency in counsel’s performance or to any
resulting prejudice (and, under Strickland, he must show both), his claim lacks merit.
It follows that he has not established that the state court adjudication of this claim
resulted in a decision that was contrary to, and involved an unreasonable application
of, clearly established law, or that it was based on an unreasonable determination of the
facts.
b.
Failure to object to original co-counsel’s conflict of
interest
190
Jenkins claims that “counsel failed to object to a patent conflict of interest in his
original co-counsel’s representation of the jailhouse informant, George Jeffcoat, who
gave critical testimony against [him]”. When Jenkins raised this claim on appeal from
the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals denied it on
the merits:
Jenkins argues that Scofield failed to object to the fact that one of
Jenkins's initial attorneys, Luther Gartrell, who withdrew from the case,
had an actual conflict of interest because he represented a material State
witness.
The circuit court stated the following about this issue:
The claim that trial counsel failed to object to an
actual conflict of interest in co-counsel's representation of a
material witness for the state.
This claim is set forth above precisely as it appears in
Jenkins's amended petition for relief. This claim is dismissed
because it violates the “clear and specific statement of the
grounds” requirement of Rule 32.6(b) of the Alabama Rules
of Criminal Procedure.
(R. 322.)
Moreover, the following occurred at the evidentiary hearing:
Q: Did there come a time when Luther Gartrell moved to
withdraw from this case?
A: Yes.
Q: What were the circumstances under which he withdrew?
191
A: Sometime during the course of the discussions that we
were having with Mark, Luther Gartrell realized that he had
represented an individual by the name of George Jeffcoat.
George Jeffcoat was going to be a state's witness in this
particular case. At that particular time, he said “Wait a
minute. I think I have a conflict.” He handled that. What he
told Judge Holladay about that, I don't know, but I know
that was the basis of him withdrawing.
(R. 284-85.) There is no more information in the record on this issue.
Clearly, Jenkins failed to meet his burden of proof on this claim. See Rule
32.6, Ala.R.Crim.P.45
Jenkins, 972 So. 2d at 131-32. Jenkins maintains that the state court’s adjudication of
this claim resulted in a decision that was contrary to, or an unreasonable application of,
clearly established Federal law, and was also based on an unreasonable determination
of the facts. (Doc. 12 at 73).
Attorney Doug Scofield was originally retained by Jenkins’s family to represent
Jenkins. (C.R. Vol. 10, Tab 27 at 3; 54). On September 14, 1989, Mr. Scofield advised
the court that the family was not financially able to pay for his services. (Id.). Scofield
indicated that he would be willing to accept an appointment to Jenkins’s case, on the
condition that local counsel be appointed to assist him. (Id.). On September 14, 1989,
the court appointed Mr. Scofield to represent Jenkins. (Id.). Simultaneously, the court
appointed Luther Gartrell to represent Jenkins as co-counsel. (Id.). Seven days later,
45
A dismissal based upon Rule 32.6(b) constitutes a ruling on the merits for AEDPA purposes.
Frazier v. Bouchard, 661 F.3d 519, 526–27 (11th Cir. 2011).
192
on September 21, 1989, Mr. Gartrell moved to withdraw from the case, noting that
“after arraignment on September 14, 1989, [he] discovered he had a conflict and could
not represent this Defendant.” (Id. at 66). It is unclear when Mr. Gartrell was relieved
as co-counsel. The case action summary indicates that Gartrell was relieved as cocounsel on September 14, 1989, one week prior to filing his motion to withdraw from
the case:
The Honorable Luther Gartrell appeared before this Court this date
and as a result of a conference held with the defendant now advises the
Court that he has a conflict of interest and request[s] to be relieved as
defendant’s counsel. The matters concerning said conflict were presented
to the Court and this Court if of the opinion that Mr. Gartrell does have
a conflict of interest.
Therefore, be it ORDERED that the Hon. Luther Gartrell be
relieved as counsel for the defendant.
(C.R. Vol. 10, Tab 27 at 4; 64-65). In any event, it appears that Mr. Gartrell was
relieved as counsel prior to October 2, 1989, since Stan Downey was appointed on that
date to serve as co-counsel for Jenkins. (Id. at 4).
In order to succeed on this claim, Jenkins must show that Mr. Scofield’s failure
to object to Mr. Gartrell’s “patent conflict of interest” was unreasonable, and that it
prejudiced the defense. Jenkins cannot show either. The record reflects that Mr.
Gartrell represented Jenkins for a maximum of eighteen days, being appointed on the
day of Jenkins’s arraignment. The record further reflects that Mr. Gartrell notified the
193
court immediately upon discovering the conflict, and the court relieved him from
representing Jenkins soon afterwards. Thus, there was no need for Mr. Scofield to
object to Mr. Gartrell’s conflict of interest; Mr. Gartrell himself alerted the court.
Further, Jenkins has offered nothing to indicate that his defense suffered any
prejudice whatsoever as a result of Mr. Scofield’s failure to object to Mr. Gartrell’s
appointment as co-counsel. Mr. Gartrell himself asked to be removed from the case
upon discovering his conflict, and the court promptly granted his request, appointing
different co-counsel. There is nothing to indicate that Gartrell’s association with
Jenkins’s case for such a short period of time so early in the case adversely impacted
Jenkins in any way. The finding by the Alabama Court of Criminal Appeals that Jenkins
failed to meet his burden of proof on this claim was neither contrary to nor an
unreasonable application of clearly established Federal law, not was it based on an
unreasonable determination of the facts.
c.
Failure to interview Sarah Harris
Jenkins contends that trial counsel were ineffective for failing to interview Sarah
Harris prior to trial. (Doc. 12 at 67-69). He claims that, at trial, Ms. Harris identified
Jenkins for the first time, after previously failing to identify him on two separate
occasions. (Id. at 68-69). He adds that:
a pretrial interview would have either prevented her from making a
194
surprise, mid-trial identification, would have provided counsel with a
basis for a pretrial motion to suppress the identification (rather than
waiting until the tainted information had already been introduced) or, it
would have prepared counsel for that identification and to head off her
prejudicial and inflammatory explanation – that she had not previously
identified Mr. Jenkins because she feared for her life. (R1 at 529-46,
571-610.)
(Id. at 69). The Alabama Court of Criminal Appeals denied this claim on the merits:
Jenkins first argues that Scofield failed to interview Sara Harris-a
coworker of the victim's who identified Jenkins as the man she saw the
victim with on the night of April 18, 1989. Specifically, he argues that
Scofield should have interviewed Harris so that he could have effectively
cross-examined her on her failure to identify Jenkins in two different
pretrial lineups.
The following occurred during the evidentiary hearing:
Q [Defense counsel]: I'm talking specifically about Sara
Harris. Did you not point that out to the trial court that she
did not positively identify Mr. Jenkins?
A [Scofield]: Yes, she was cross-examined on that item-no
question about it. My assumption going into trial was she
was not going to be able to identify him. She couldn't on two
different occasions. All of a sudden she shows up, after
having had a meeting with the [district attorney], and now
she is saying, “Yes, that is the guy” and identified him. . . .
Q: You made that argument, did you not?
A: There is no question she was cross-examined and the jury
was pointed that out on two prior occasions. Whether they
believed and discredited her, I can't say.
(R. 381-82.)
195
At the Rule 32 hearing Scofield was questioned about Harris's
identification testimony. Scofield stated that he knew that Harris's
identification of Jenkins was questionable because he had been present at
one pretrial lineup where she was unable to identify Jenkins. He also
stated-and the trial record supports his statement-that he thoroughly
cross-examined Harris about the fact that although she was unable to
identify Jenkins before trial she was able to identify him at trial.
[T]he failure to interview or take the depositions of the
State's witnesses for impeachment purposes is not
prejudicial per se. See McCleskey v. Kemp, 753 F.2d 877,
900 (11th Cir. 1985) (en banc) (holding no prejudice shown
where attorney failed to interview two of State's witnesses
and potential defense witnesses); Boykins v. Wainwright,
737 F.2d 1539, 1543 (11th Cir. 1984) (holding no prejudice
shown where attorney failed to interview prosecution's
expert witnesses), cert. denied, [470] U.S. [1059], 105 S.Ct.
1775, 84 L.Ed.2d 834 (1985); Solomon v. Kemp, 735 F.2d
395, 402 (11th Cir. 1984) (holding no prejudice shown
where attorney failed to talk to all of the State's witnesses
and did not seek funds for an investigator), cert. denied,
[469] U.S. [1181], 105 S.Ct. 940, 83 L.Ed.2d 952 (1985).
Aldrich v. Wainwright, 777 F.2d 630, 636-37 (11th Cir. 1985). Jenkins
has failed to show that his counsel's performance was deficient or that he
was prejudiced by Scofield's failure to interview Sara Harris. Jenkins has
failed to satisfy the Strickland test.
Jenkins, 972 So. 2d at 128-29.
Sarah Harris testified at trial that she was working at the Omelet Shoppe with
Tammy Hogeland on April 18, 1989. (R. Vol. 3, Tab 9 at 518-20). At around 2:00 a.m.,
a red car pulled into the parking lot and almost jumped the curb. (Id. at 522-23). A
“white male with dark complexion, dark hair, wearing a brown, plaid shirt and blue
196
jeans” exited the car and entered the Omelet Shoppe. (Id. at 523-24). Ms. Harris later
gave the man’s physical description to Birmingham Police Officer Belinda Weldon. (Id.
at 524). Once inside the Omelet Shoppe, the man “walked to the end of the counter and
began to talk to Tammy [Hogeland].” (Id. at 525). Shortly after the man arrived, Ms.
Harris saw him leaving in the red car, with Tammy Hogeland as his passenger. (Id. at
526). Tammy Hogeland never returned to the Omelet Shoppe. (Id.).
When Ms. Harris was asked “do you see the individual in the courtroom today
that you remember seeing on the 18th of April 1989,” defense counsel objected,
requesting to take the matter up outside the presence of the jury. (Id. at 529). The court
overruled the objection, again allowing the prosecution to ask Ms. Harris if she saw “in
the courtroom today the person who Tammy Hogeland left with on [sic] the early
morning hours of the 18th of April 1989.” (Id. at 530). Defense counsel unsuccessfully
lodged the same objection two more times. (Id.). Ms. Harris was finally allowed to
point out and identify Jenkins as having been the man in the red car. (Id.). She testified
that his appearance had changed since 1989, in that, by the time of trial, his hair was
different, his complexion was lighter46 and he had gained weight. (Id. at 530-31).
The court then held a hearing outside the presence of the jury, at which defense
46
Ms. Harris explained that on April 18, 1989, his skin tone was “more of a dark complexion like
Mexican.” (Id. at 531).
197
counsel argued that Ms. Harris’s in-court identification of Jenkins should be suppressed
because of the suggestive nature of the prior identifications. (Id. at 533-34).47 Ms.
Harris testified that when she was shown a photographic lineup in 1989, she was not
able to positively identify the man from the red car, but chose “Number 2" in the
lineup48 as appearing to be that man. (Id. at 539). Ms. Harris also testified that in June,
1989, she appeared at a live lineup, but was unable to identify the man from the red car.
(Id. at 542-43). She explained, still outside the presence of the jury, that she did not
identify Jenkins in the live lineup because she “was afraid.” (Id. at 545).
When the trial resumed, defense counsel cross-examined Ms. Harris, getting her
to admit that Tammy Hogeland did not appear to be in distress when she was talking
to the man from the red car; that Tammy did not appear to leave involuntarily; that she
did not see Tammy walking out of the Omelet Shop, but saw her in the car as it was
driving off; and that she could not see who was driving the car, but assumed it was the
same person who drove up in the car. (Id. at 577-79). Defense counsel also brought out
on cross-examination that Ms. Harris had failed to identify Jenkins in a photo lineup
and a live lineup; that the week before the trial, Ms. Harris met with the District
47
Defense counsel argued that it “was the point of [the defense’s] motion that any in court
identification should be suppressed.” (Id. at 533-34). The defense had filed a “Motion to Suppress
Identification” on September 5, 1989. (C.R. Vol. 10, Tab 27 at 37-39).
48
Number 2 in the lineup was Jenkins. (Id.)
198
Attorney, who showed her more photographs and went over what he would ask Ms.
Harris in court and what her testimony would be; and that she indicated that Jenkins’s
appearance had changed since the night at the Omelet Shoppe. (Id. at 583-88).
Jenkins alleges that counsel were ineffective for failing to interview Ms. Harris
prior to the trial. To prevail on this claim, Jenkins must show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Jenkins seems to combine the two parts of the Strickland test into an argument that
counsel were necessarily ineffective because he was prejudiced by their failure to
interview Ms. Harris prior to trial.
Jenkins claims that a pretrial interview would have prevented Ms. Harris from
identifying him for the first time at trial; or would have provided counsel with a basis
for a pretrial motion to suppress the identification; or would have prepared counsel for
that identification so counsel could have prevented “her prejudicial and inflammatory
explanation” that she had not previously identified Jenkins because she feared for her
life. (Doc. 12 at 69). However, Jenkins offers no explanation as to how interviewing
Ms. Harris prior to trial would have prevented her from identifying him at trial. Further,
counsel did file a pretrial “Motion to Suppress Identification,” asking the court to
“suppress any testimony by a Mr. or Mrs. Cole, or any other State witness regarding
their identification of the defendant at a photographic lineup following the alleged
199
murder of Tammy Hogeland,” and “any identification of the defendant from observing
or viewing him in Court or at any other time or place.” (C.R. Vol. 10, Tab 27 at 37).
Finally, Ms. Harris’s “prejudicial and inflammatory explanation - that she had not
previously identified Mr. Jenkins because she feared for her life” was made in an incamera hearing, outside of the presence of the jury; therefore, it could have had no
impact on the jury.
Jenkins has not shown that counsel’s failure to interview Ms. Harris prior to trial
was either deficient or resulted in any prejudice to his defense. Thus, the Alabama
Court of Criminal Appeals’ finding that Jenkins failed to satisfy the Strickland test was
neither contrary to nor an unreasonable application of clearly established Federal law,
nor was it based on an unreasonable determination of the facts.
d.
Failure to interview Doug Thrash
Jenkins claims that counsel were ineffective for failing to interview Doug Thrash
prior to trial. He alleges that, at trial, Mr. Thrash claimed for the first time that, on the
night of April 18, 1989, “he heard Mr. Jenkins talk to Ms. Vines about Ms. Hogeland
and in that conversation he heard something about the ‘10th Avenue Omelet
Shoppe,’the location where Ms. Hogeland had transferred.” (Doc. 12 at 68). Jenkins
argues that because there was no evidence that he knew the 10th Avenue Omelet
Shoppe even existed, much less that the victim had been transferred there, “this dubious
200
testimony proved decisive.” (Id.). He concludes that a pretrial interview would have
prevented this new testimony or would have given the defense the opportunity to alter
its theory to accommodate it. (Id.). The Alabama Court of Criminal Appeals found the
claim to be without merit:
Jenkins argues that counsel was ineffective in failing to interview
Doug Thrash - the manager of the Riverchase Omelet Shoppe where the
victim worked. Thrash testified that he sent the victim to the Tenth
Avenue Omelet Shoppe on the evening of April 18, 1989, because the
Tenth Avenue location was short of personnel. The record shows that
Thrash made a pretrial statement to police in which he said that he
overheard Jenkins and another employee talking at the Riverchase Omelet
Shoppe and that he did not hear any mention of the fact that the victim
had been sent to work at another location that evening. At trial, Thrash
testified that he overheard someone mention the Tenth Avenue Omelet
Shoppe when Jenkins was in the Riverchase Omelet Shoppe.
The record shows that counsel did impeach Thrash with this
information. Counsel questioned him as to why he did not tell police that
the Tenth Avenue location was mentioned when Jenkins was at the
Riverchase Omelet Shoppe. The record does not support Jenkins's
contention.
Jenkins, 972 So. 2d at 129. Jenkins maintains that the state court’s adjudication of this
claim resulted in a decision that was contrary to, or an unreasonable application of,
clearly established Federal law, and was also based on an unreasonable determination
of the facts. (Doc. 12 at 73).
Doug Thrash, the district supervisor at Omelet Shoppe, testified that Jenkins was
201
a regular customer who came into the Omelet Shoppe “just about every shift at least
once or twice a day,” and talked to “just about everybody that worked there.” (R. Vol.
5 at 960). On the night of April 18, 1989, Mr. Thrash was working at the Riverchase
store with waitresses Shirley Harrelson and Frieda Vines when Jenkins entered the
store at approximately 1:00 a.m. with Christine, a former Omelet Shoppe employee.
(Id. at 959-60). Mr. Thrash testified that while Jenkins was talking to the waitresses
that night, he heard one of the waitresses and Jenkins mention the 10th Avenue Omelet
Shoppe, but did not recall Tammy Hogeland being mentioned. (Id. at 962-63).
On cross-examination, Mr. Thrash admitted that he had met with the district
attorney the week prior to trial. (Id. at 972). Defense counsel also brought out on crossexamination that, during that meeting, the district attorney explained to Mr. Thrash that
he would be called to testify in the case, why he was being called to testify, and the
significance of his testimony. (Id. at 972-73). Defense counsel then cross-examined Mr.
Thrash on his interview with Officer Ronnie Cribbs in June, 1989:
Q. Back in June of 1989 when you were interviewed by Ronnie Cribbs,
Ronnie Cribbs specifically asked you if you had heard or had Mark
Jenkins inquired about Tammy going to the 10th Avenue store, and you
told him that you did not hear anything about that, isn’t that true?
A. I didn’t hear him ask any specific question about where she was, no.
But that night, I did hear somebody mention something about the 10th
Avenue. Now, I don’t know what kind of question was asked.
202
Q. And you don’t know what was said?
A. No, I don’t know –
Q. You just remember 10th Avenue?
A. Yes, sir.
Q. You don’t remember anything else about the conversation?
A. No, sir.
Q. And you didn’t hear anything else that was said but 10th Avenue?
A. I remember 10th Avenue being brought up, and the reason I do is
because we’re not supposed to inform anybody, customers or other
employees where an employee is working, their phone number, address,
or anything else.
Q. And to your knowledge, no one was doing that; is that correct?
A. Well, as far as I know –
Q. You just heard the words 10th Avenue, isn’t that correct?
A. I heard the words 10th Avenue, and I knew that Tammy was supposed
to work in that unit. She was scheduled to work in that unit that night.
Q. Well, Christine was working at that store at that time, wasn’t she?
A. She wasn’t employed. I think she had just quit.
Q. And Laurie Acton, you saw her out there that night, and she was with
them and she was employed?
A. Now, that, I don’t remember.
203
Q. But it is true that you never told Ronnie Cribbs anything about 10th
Avenue?
A. I’d say that’s been a couple of years ago. I don’t remember all the
conversation I had with Ronnie Cribbs.
Q. But you won’t deny you never told Ronnie about 10th Avenue, would
you?
A. No, but I’m not going to say I didn’t.
(Id. at 973-75).
Jenkins alleges that counsel were ineffective for failing to interview Mr. Thrash
prior to the trial. To prevail on this claim, Jenkins must show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Again, Jenkins seems to combine the two parts of the Strickland test into an argument
that counsel were necessarily ineffective because he was prejudiced by their failure to
interview Mr. Thrash prior to trial.
Additionally, Jenkins offers no explanation as to how interviewing Mr. Thrash
prior to trial would have prevented his testimony at trial. Defense counsel did impeach
Mr. Thrash at trial, pointing out the inconsistency between his pretrial statement to the
police (that he did not hear Jenkins and another employee discussing the 10th Avenue
Omelet Shoppe) and his trial testimony (that “somebody” mentioned the 10th Avenue
Omelet Shoppe location). However, there is simply nothing to indicate that a pretrial
204
interview would have changed or prevented Mr. Thrash’s testimony, or that it would
have changed the outcome of the trial.
Jenkins has failed to show that counsel’s failure to interview Mr. Thrash prior
to trial was either deficient or resulted in any prejudice to his defense. Thus, the
Alabama Court of Criminal Appeals’ finding that the record failed to support Jenkins’s
contention that counsel were ineffective for failing to interview Mr. Thrash was not
contrary to or an unreasonable application of clearly established Federal law, nor was
it based on an unreasonable determination of the facts.
e.
Failure to interview Frieda Vines
Jenkins asserts that counsel were ineffective for failing to interview Frieda Vines
prior to trial. He claims that while her testimony in the Rule 32 proceedings was
favorable to the defense and entirely consistent with Mr. Thrash’s pretrial statement,
it contradicted Mr. Thrash’s trial testimony. (Doc. 12 at 68). He argues that Ms.
Vines’s testimony at trial would have contradicted and impeached Mr. Thrash’s trial
testimony. (Id. at 69). The Alabama Court of Criminal Appeals denied this claim on the
merits:
Jenkins next argues that Scofield failed to interview Frieda Vines,
an employee of the Riverchase Omelet Shoppe, who, he alleges, could
have testified that when Jenkins was in that store no one mentioned the
Tenth Avenue Omelet Shoppe.
205
Vines was called to testify at the Rule 32 hearing. She testified that
she could not remember whether any conversation took place about the
Tenth Avenue Omelet Shoppe. (R. 298-99.) Jenkins failed to present
evidence to support this contention.
Jenkins, 972 So. 2d at 129. Jenkins maintains that the state court’s adjudication of this
claim resulted in a decision that was contrary to, or an unreasonable application of,
clearly established Federal law, and was also based on an unreasonable determination
of the facts. (Doc. 12 at 73).
Ms. Vines did not testify at trial. However, she testified as follows in the Rule
32 proceedings:
Q. Do you remember, following Ms. Hogeland’s disappearance and
ultimate death, do you remember having a conversation with a police
officer, Ron Cribbs?
A. I remember a conversation. I don’t remember the cop’s name.
Q. If Ronnie Cribbs filed a police report in which he documents your
statements about this case, would that be consistent about your
recollection?
A. Yes.
Q. Do you remember your conversation with Mr. Cribbs?
[The Prosecution]: Your Honor, it might be helpful if Mr.
Flood shows her her statement.
The Court: You are asking if she recalls the conversation?
Mr. Flood: Yes.
206
The Court: That is a yes or no.
Q. Do you remember that conversation?
A. You mean do I remember what I told him?
Q. Yes.
A. (Nods head in the affirmative.)
Q. Prior to this hearing today, I asked you if you would like to read over
your statement, and you said you wouldn’t. Is that correct?
A. Yes.
Q. Would you like to read over it now?
A. If you want me to read it, I will; but I remember what it says.
Q. The crux of your conversation with Corp. Ronnie Cribbs was related
to a conversation you had with Mr. Jenkins the night of the crime. Right?
A. Yes.
Q. Do you remember that conversation?
A. Yes.
Q. Do you remember if during that conversation, Mr. Jenkins ever talked
about Ms. Hogeland?
A. No.
Q. Do you remember during that conversation if you or Mr. Jenkins ever
talked about the 10th Avenue Omelet Shop[pe]?
207
[The Prosecution]: Your Honor, this is leading.
The Court: Try not to lead.
A. No.
Mr. Poole: Could we have a clarification if “No, she doesn’t
remember” or “No, he didn’t.”
A. No, I don’t remember.
Q. You don’t remember?
A. I don’t remember specifically if he did or did not.
Q. Do you remember having a conversation with me this past November
and we talked about this?
A. Yes.
Q. Do you remember telling me that he did not talk about that?
A. Yes. I also told you I didn’t remember if I did or didn’t.
Q. Which is it? It is my recollection you said he did not talk about that?
A. Right.
Q. Was there a conversation between you and Mr. Jenkins about the 10th
Avenue Omelet Shop[pe]?
A. No.
[The Prosecution]: Your Honor, is it “No, there was no
conversation” or “No, she doesn’t remember”?
The Court: I understand her to say there was no
208
conversation. Is that right?
A. Yes, that’s right.
Q. Did the police officer who took your statement ever tell you or provide
information to you there was another suspect in this case?
[The Prosecution]: Your Honor, objection. That is irrelevant.
The Court: She can answer if she knows.
A. No.
Q. That’s all.
On examination by [the Prosecution]:
Q. Just because you don’t recall any conversation with yourself and Mr.
Jenkins concerning Tammy Hogeland, the victim in this case, that doesn’t
mean that you don’t know if he talked about it to anybody else, do you?
A. I have no idea.
Q. That’s all.
(Rule 32 R. Vol. 21 at 366-70).
The Alabama Court of Criminal Appeals found that Jenkins failed to provide
evidence to support this claim. The court specifically noted that Ms. Vines “testified
that she could not remember whether any conversation took place about the Tenth
Avenue Omelet Shoppe.” Jenkins, 972 So. 2d at 129. Jenkins argues that “[c]ontrary
to the state court’s finding, Ms. Vines (who did not testify at trial) testified in Rule 32
209
that she did not discuss Ms. Hogeland or the 10th Avenue Omelet Shoppe, as was
suggested by Mr. Thrash.” (Doc 12 at 68). Jenkins adds that:
Vines’ testimony contradicts the part of the account that Thrash changed
at trial. Absent this contradiction, the State was able to fill a critical gap
in its proof and, thereby, connect Mr. Jenkins to the victim by arguing that
Vines directed him to where Ms. Hogeland was working the night she
disappeared.49 Because there was no evidence Mr. Jenkins even knew
that the 10th Avenue Omelet Shoppe existed, much less that Ms.
Hogeland had been transferred there, this dubious testimony proved
decisive.
(Id.).
Vines’s testimony at the hearing on the Rule 32 petition was not entirely clear.
When asked if she remembered Jenkins talking about Tammy Hogeland, Ms. Vines
testified that she did not remember if he did or if he did not. (Rule 32 R. Vol. 21 at 36768). When asked if she remembered if she or Jenkins talked about the 10th Avenue
Omelet Shoppe, she testified that she did not remember. (Rule 32 R. Vol. 21 at 36768). When Jenkins’s Rule 32 counsel asked Vines if she remembered telling counsel
previously that Jenkins did not talk about the 10th Avenue Omelet Shoppe, she stated
that she did remember telling counsel that Jenkins did not talk about the 10th Avenue
Omelet Shoppe, but added that she also told counsel that she did not remember if she
talked about it or not. (Id. at 368). When questioned further, Ms. Vines stated that there
49
Jenkins cites nothing to support his assertion that the State argued that Vines “directed” him to the
10th Avenue Omelet Shoppe.
210
was no conversation between her and Jenkins about the 10th Avenue Omelet Shoppe.
(Id. at 369). However, on cross-examination, Ms. Vines explained that she had no idea
whether Jenkins discussed the 10th Avenue Omelet Shoppe with anyone else. (Id.).
Jenkins argues that Vines’s testimony at trial would have been critical to his
defense, because if she had testified that she did not discuss the victim or the 10th
Avenue Omelet Shoppe on the night of the murder, there would have been no evidence
that Jenkins even knew the 10th Avenue Omelet Shoppe existed. However, given Ms.
Vines’s somewhat contradictory testimony, it is equally possible that a jury could have
concluded from her testimony that she simply could not remember whether or not
anyone had mentioned to or discussed with Jenkins either Ms. Hogeland or the 10th
Avenue Omelet Shoppe. Thus, Jenkins has not shown that his counsel was
constitutionally ineffective.
Furthermore, Officer Cribbs testified that someone he interviewed during his
investigation of the crime indicated to him that “they told [Jenkins] that Tammy was
at the 10th Avenue store.” (R. Vol. 7 at 1245). Thus, even had Vines testified at trial
in the manner that Jenkins suggests, the jury still would have heard Officer Cribbs’s
testimony, which the jury could find suggested that Jenkins did have knowledge of
where the victim was working the night she was killed. Thus, Jenkins cannot show that
he was prejudiced in any way by counsel’s failure to interview Vines prior to trial.
211
As Jenkins has failed to show ineffective assistance or prejudice, he necessarily
has filed to show that the state court’s finding was contrary to or an unreasonable
application of clearly established Federal law, or that it was based on an unreasonable
determination of the facts.
f.
Failure to discover that another suspect was
detained and questioned in connection with the
victim’s murder
Jenkins further claims that counsel were ineffective for “failing to thoroughly
review the prosecution’s files and discovering [sic] that a report indicating that a man,
matching the description of the suspect, was detained in a highly unusual set of
circumstances, extradited back to Alabama and questioned in connection with Tammy
Hogeland’s murder.” (Doc. 12 at 69-70). He contends that this information would have
been invaluable to him in advancing an “identification defense” by casting doubt on
state witness identifications, and it would have “put a face on another suspect who had
both the opportunity to abduct Ms. Hogeland and who fit the eyewitness descriptions
of the suspect.” (Id. at 70). The Alabama Court of Criminal Appeals denied this claim
on the merits:
Jenkins argues that Scofield failed to review the prosecution's files.
Specifically, he argues that Scofield should have discovered that another
suspect had been arrested in connection with Hogeland's murder. FN.10.
FN.10. Jenkins also argues that the State violated Brady v.
212
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), by failing to disclose this information to the defense.
We note that Jenkins's arguments on this issue appear to be
inconsistent.
Scofield testified at the evidentiary hearing that the State had an
open-file discovery policy, that he reviewed the State's files, that he had
conversations with the district attorney about the State's evidence, and
that he had been mailed reports from the National Crime Information
Center (“NCIC”) regarding several of the State's witnesses. The following
occurred at the evidentiary hearing:
Q [Defense attorney]: Did you review the entire District
Attorney file in this case?
A [Scofield]: Yes, I did.
Q: During the review of that evidence, was there any time at
which you saw the State had any information regarding
other suspects for this crime?
A: No, I don't remember seeing anything in the file about
other suspects.
Q: Had there been information in the files, do you think you
would have recalled that?
A: That is definitely one of the things I would have been
looking for.
Q: Why is that?
A: In an identification case like this, that is generally one of
the things that is helpful. You are always looking for ‘Is this
guy the only person they have ever focused on?’ Or ‘Are
there other people that match the description?’ You are
always looking at ‘Do the descriptions match? How
213
accurate are the identifications? Misidentifications.
Suspects.’ That is basic stuff you look for.
Q: You described this as an identification case. What do you
mean by that?
A: The State's case, at the time prior to trial, they had no one
who could positively identify Mark Allen Jenkins as the
individual who left with Tammy Hogeland the night of the
murders. They had one person who supposedly was an
eyewitness, who previously could not pick Mark out of a
photographic lineup or a live lineup. I actually attended that
live lineup. She couldn't pick Mark out of that lineup. I was
told she couldn't pick him out of a photographic lineup.
There was one other witness whose identification was a
little bit questionable-the older couple. There was some talk
about maybe they saw something on Crime-Stoppers.
FN.11. The question there was any subsequent
identifications-were they identifying Mark as the person
they saw on Crime-Stoppers or were they identifying him
from the time. They had some real questionable issues with
regard to being able to identify Mark as the individual who
was at the Omelet Shoppe that night.
FN.11. Crime-Stoppers' was a television
segment that would be aired on the local
newscast, seeking information from viewers to
help police solve a recent crime.
Q: Were there any special circumstances which would have
given you a heightened sensitivity to identification issues or
other suspect evidence in this case?
A: You know, one case I previously tried and had specific
recollection, I had gotten a conviction overturned on a
Brady [v. Maryland, 373 U.S. 83 (1963) ], issue in which
the State failed to disclose this type of evidence. In that
214
particular case, the police failed to disclose two[Assistant attorney general]: Your Honor, this other case is
irrelevant.
The Court: It really is. I understand you are showing he is
aware of an issue. Let's move along.
Q: I show you what has been marked-Your Honor, this is a
document that has been turned over to me by the State of
Alabama during the discovery process. It was represented
this came out of the District Attorney's file. It was provided
to me by opposing counsel. It has been in my custody and
possession since I have received it.
[Assistant attorney general]: We have some objections to
this document being offered at this time.
The Court: We'll see.
Q: Will you take a look at what is marked Petitioner's No.
4. Have you seen this before?
A: Yes, I have.
Q: Where did you see it the first time?
A: At my office Saturday morning.
Q: Prior to Saturday, January 18, 1997, had you seen this
document before?
A: I had not.
Q: What does that document appear to be?
A: It appears to be a police report from Jackson,
215
Mississippi, in which an individual by the name of Potagly
or something like that-Bragley or something-was arrested
apparently in connection with Tammy Hogeland's
disappearance. It appears from this document that the St.
Clair County Sheriff's Office requested he be held on a
warrant and extradited back to St. Clair County with regard
to the missing person-the Tammy Hogeland case.
(R. 298-302.) The above testimony shows that Jenkins has failed to
satisfy the Strickland test.
Jenkins, 972 So. 2d at 129-131. Jenkins claims that the state court’s adjudication of
this claim resulted in a decision that was contrary to, and involved an unreasonable
application of, clearly established Federal law, and that it was based on an
unreasonable determination of the facts.
The report in question is a police report from the Jackson, Mississippi Police
Department. (Rule 32 C.R. Vol. 19 at 462-71). The report documents that on April 24,
1989, John Beraglia was traveling on a Greyhound bus when witnesses overheard him
talking about killing and shooting people. (Id. at 465-66). The witnesses contacted the
police who found Beraglia at the Greyhound Bus Station. (Id. at 469). Beraglia stated
that he “started riding the bus on about” April 19, 1989, but was not sure if he got off
the bus in Birmingham. (Id. at 467-68). According to the report, the police took
Beraglia into custody pursuant to a teletype from the Pell City, Alabama police
department, because he matched the general description of Jenkins, except that he
216
weighed 100 pounds more than Jenkins. (Id. at 465, 467). District Attorney Van Davis
testified at the Rule 32 evidentiary hearing that “some BOLO’s” had been issued by
Alabama authorities “to agencies between Alabama and California,” indicating that
Jenkins was possibly traveling by bus. (Rule 32 R. Vol. 22 at 559). Mr. Davis added
that they were looking for Jenkins, not an unknown suspect. (Id.). Mr. Davis further
testified that he had an “open-file policy,” and his routine was to meet with opposing
attorneys to allow them to look through his file, and request copies of any document
they wanted. (Id. at 539). He added that he did not withhold the police report from
defense counsel. (Id. at 540).
Jenkins’s trial attorney, Doug Scofield, testified at the Rule 32 evidentiary
hearing that he reviewed the district attorney’s entire file in Jenkins’s case, but he did
not “remember seeing anything in the file about other suspects.” (Rule 32 R. Vol. 21
at 298). He later testified that he was “absolutely positive” he did not see the police
report in the district attorney’s file. (Id. at 325). Jenkins faults counsel for failing to
discover the report, claiming that the report would have advanced his “identification
defense,” and would have given the jury another suspect who fit the eyewitness
descriptions of the suspect. (Doc. 12 at 70).
Mr. Scofield testified that he thoroughly reviewed the district attorney’s file but
did not see the police report. (Rule 32 R. Vol. 21 at 324). At most, counsel’s failure to
217
discover the report was mere negligence on their part and cannot be said to constitute
an error so serious that they were not functioning as the counsel guaranteed by the
Sixth Amendment. See Strickland, 466 U.S. at 687.
Regardless of whether counsel’s failure to discover the report was
constitutionally deficient, Jenkins cannot show that he was prejudiced as a result. First,
it does not appear that the report would have helped Jenkins to establish that there was
ever another suspect in his case, since Beraglia was stopped merely on suspicion of
being Jenkins, who was the only suspect in the case. Further, Jenkins was identified by
several witnesses at trial as being the man who was last seen with the victim.50 Finally,
the circumstantial evidence against Jenkins was substantial. In short, Jenkins cannot
show that, had counsel known about the Beraglia police report, the outcome of his trial
would have been any different.
Thus, the finding of the Alabama Court of Criminal Appeals that Jenkins failed
to establish counsel were ineffective for failing to discover the Beraglia police report
was not contrary to or an unreasonable application of clearly established Federal law,
nor was it based upon an unreasonable determination of the facts.
50
Sarah Harris identified Jenkins at trial as being the man with whom the victim left the Omelet
Shoppe in a red car. (R. Vol. 3, Tab 9 at 530). Geraldine and Bobby Coe identified Jenkins as the man
they had seen at around 5:00 a.m. on April 18, 1989, at the Chevron gasoline station in Springville,
Alabama, in a little red car, with a girl apparently passed out or asleep in the passenger seat. (R. Vol.
5, at 869-76; 900-11).
218
g.
Failure to conduct appropriate voir dire
Jenkins claims that, during jury selection, his attorneys were disorganized,
lacked a strategy, and failed to ask effective questions, causing them to fail to develop
juror bias that would have led to challenges for cause or informed peremptory
challenges. (Doc. 12 at 70). He adds that:
As a result of counsel’s ineffectiveness during jury selection
numerous jurors who were unqualified to serve, due to their strong views
in favor of the death penalty (R1 at 335, 337, 361, 363), the use of
alcohol (R1 at 300-01), defendants testifying (R1 at 360), law
enforcement (R1 at 235, 352, 354, 358), or knowledge about the case (R1
at 212), were not removed for cause or by peremptory challenge.
Conversely, trial counsel failed to rehabilitate jurors who expressed views
against the death penalty, and did nothing to educate the jury about the
identification evidence or to determine whether jurors held biases against
such a defense, and remove jurors who could not be impartial.
(Id. at 71). The Alabama Court of Criminal Appeals denied this claim on the merits:
Jenkins argues that his attorneys failed to conduct an adequate voir
dire examination that he says would have disclosed biases of certain
prospective jurors. Specifically, Jenkins argues that the examination failed
to disclose those jurors who favored capital punishment, failed to disclose
jurors who were biased against individuals who consumed alcohol, failed
to disclose jurors who believed that a defendant, if innocent, should
testify, and failed to disclose those jurors who were opposed to capital
punishment.
The circuit court stated the following concerning this general claim:
In setting forth this claim in his petition, Jenkins failed
to include a “full disclosure of the factual basis” of the
grounds upon which he contends he is entitled to relief. Rule
219
32.6(b), A.R.Crim.P. Likewise, other than general questions
of trial counsel about the jury selection, Jenkins presented
no evidence relevant to this claim at the evidentiary hearing.
In fact, it was established at the hearing that Stan Downey
was primarily responsible for the selection of the jury due to
his status as a “local” attorney. However, Jenkins failed to
call Mr. Downey as a witness. There was no indication that
Mr. Downey was unavailable to testify.
Jenkins has offered nothing concerning how the voir
dire of the jury panel should have been conducted. He has
not shown that the voir dire, as handled by trial counsel, fell
outside “the wide range of reasonable professional
assistance.” Strickland v. Washington, 466 U.S. at 668.
Furthermore, Jenkins has not shown a reasonable probability
that, had a different method of voir dire been employed, the
result of the trial would have been different. Id. at 694-95.
Jenkins has the burden to prove by a preponderance of the
evidence the facts necessary to show that he was entitled to
relief. Rule 32.3, A.R.Crim.P. He has failed to meet his
burden.
(C.R. 306-07.)
As to the specific claims Jenkins raises in his brief to this Court,
there was no evidence presented to support any of the grounds raised in
the petition. Jenkins failed to present any evidence to support this claim;
therefore, he failed to meet his burden of proof. See Rule 32.3,
Ala.R.Crim.P.
Jenkins, 972 So. 2d at 135. Jenkins maintains that the state court’s adjudication of this
claim was contrary to, and involved an unreasonable application of, clearly established
Federal law, and that it was based upon an unreasonable determination of the facts.
(Doc. 12 at 73).
220
Jenkins has offered nothing but conclusions in support of this claim. Although
he argues that counsel should have conducted voir dire differently, he does not identify
what counsel should have done differently. In short, he offers nothing that would
indicate counsel’s performance in regard to voir dire was unreasonable. Further, even
if counsel performed unreasonably, Jenkins offers nothing to show that there is a
reasonable probability that, had counsel conducted voir dire differently, the result of his
trial would have been different. Therefore, this court cannot find that the Alabama
Court of Criminal Appeals’ determination that he failed to present any evidence to
support this claim was contrary to, and involved an unreasonable application of, clearly
established Federal law, or that it was based upon an unreasonable determination of the
facts.
h.
Failure to make numerous objections at trial
Jenkins contends that counsel were ineffective for failing to make numerous
objections at trial, including failing to object to the prosecutor’s misconduct, failing to
object to the trial court’s misstatements of the law, and failure to ensure that the trial
court’s errors were preserved for appellate review. (Doc. 12 at 71-72). Specifically, he
claims that:
Trial counsel denied Mr. Jenkins of the effective assistance of
counsel in failing to adequately protect his constitutional rights by
objecting to the prosecutor’s highly improper and prejudicial misconduct,
221
including misstatements of the law regarding reasonable doubt, elements
of capital murder, robbery as an aggravating factor, robbery as an
afterthought, kidnapping, and the State’s burden of proof. (R1 at 1550,
1551-53, 1560, 1609, 1610, 1611-13, 1614, 1615, 1619, 1621-22, 1735,
1736, 1737, 1748.) See, Issue F, supra. Trial counsel failed to object to the
prosecutor’s other misconduct including expressing personal opinions about guilt,
vouching for the State’s evidence, arguing in favor of non-statutory aggravating
circumstances, arguing deterrence, introducing improper victim impact, comparing the
rights of the victim to those of the defendant, encouraging the jury to base its verdict
on speculation and hearsay, commenting on Mr. Jenkins’s failure to testify, making
improper burden-shifting arguments, and referring to inflammatory evidence which had
been excluded. (R1 at 1548-51, 1553, 1556-57, 1604, 1608, 1609, 1611, 1612, 1614,
1619, 1622, 1623, 1625, 1629, 1630, 1633-35, 1734-37.) See, Issue F, supra.
Trial counsel failed to object and properly preserve the numerous
instances where the trial court either misstated the law, failed to charge
or gave inadequate or misleading instructions on lesser included offenses
of felony-murder, unintentional murder, and intoxication, on aggravating
circumstances, robbery as an afterthought, voluntariness, on Mr. Jenkins’s
failure to testify, circumstantial evidence and reasonable doubt, and the
jury’s advisory verdict. (R1 at 1550, 1613, 1647, 1649-50, 1652,
1661-64, 1666, 1669, 1672-73, 1687-89, 1714-17.) See, Issue E, supra.
Trial counsel also rendered ineffective assistance in failing to insure
[sic] that the record preserved additional errors including failing to object
to the improper double-counting a single criminal act – the act of murder
– in order to elevate a non-capital murder into a kidnapping-capital
murder, failing to adequately object to the admission of inflammatory
photographs, failing to object to and moving for a mistrial due to the
emotional outbursts from the victim's family, failing to object to the
method of execution, failing to object to victim impact evidence, failing
to object to breaks in the chain of custody and evidence lacking a proper
legal foundation, and failing to object to hearsay.
(Doc. 12 at 71-72). The Alabama Court of Criminal Appeals denied the claims on the
merits on appeal from the denial of Jenkins's Rule 32 petition:
222
Jenkins also argues that Scofield failed to object to the repeated
misconduct on the part of the prosecutor, failed to object to instances
where the trial court misstated the law, failed to object and to ensure that
a complete record was transcribed for appellate review, failed to object
to allegedly improper venue, and failed to make a laundry list on appeal
of other objections that should have been made at trial. Again, Jenkins
merely includes a laundry list of where he thinks objections could have
been made and failed to offer any evidence to support each specific
instance he alleges Scofield failed to make an objection. When addressing
this issue, the circuit court stated:
Trial counsel testified that during the course of the
trial, he objected to matters he felt were improper. He
additionally testified concerning his extensive appellate
experience and stated that he knew the importance of
preserving and protecting a record. Trial counsel's
performance cannot be said to have been “outside the wide
range of professionally competent assistance” simply
because he failed to raise every available objection to
argument. The Constitution does not guarantee a perfect trial
but rather a “fair and a competent attorney.” Engle v. Isaac,
456 U.S. at 134; Stanley v. Zant, 697 F.2d 955, 964 n. 7
(11th Cir. 1983), cert. denied, 467 U.S. 1219 (1984) (“[A]
defendant is not entitled to perfection but to basic
fairness.”). A lawyer's “heat-of-trial decision,” concerning
when to object, should not be second-guessed by those
having the benefit of hindsight. Fleming v. Kemp, 748 F.2d
1435, 1450 (11th Cir. 1984), cert. denied, 475 U.S. 1058
(1986). Finally, Jenkins has failed to show that a different
outcome of the trial probably would have resulted but for
counsel's allegedly ineffective performance. He has failed to
meet the required showing of both deficient performance
and prejudice pursuant to Strickland.
(C.R. 313.)
As we stated in Daniels v. State, 650 So.2d 544, 555
223
(Ala.Crim.App. 1994):
“[E]ffectiveness of counsel does not lend itself to
measurement by picking through the transcript and counting
the places where objections might be made.” Stringfellow v.
State, 485 So.2d 1238, 1243 (Ala.Cr.App.1986). “Even
though there were several instances where counsel could
have objected, ‘that does not automatically mean that the
[appellant] did not receive an adequate defense in the
context of the constitutional right to counsel.’ Ex parte
Lawley, 512 So.2d 1370, 1373 (Ala. 1987).” O'Neil v. State,
605 So.2d 1247, 1250 (Ala.Cr.App. 1992). As this Court
observed in Graham v. State, 593 So.2d 162, 166
(Ala.Cr.App. 1991):
“The lawyer whose performance the appellant
now attacks zealously and vigorously defended
the appellant. No particular decision to object
or not object, even if it is a bad decision, is in
itself proof that counsel's performance fell
below acceptable professional standards.”
As the United States Court of Appeals for the Eleventh Circuit
stated in Marek v. Singletary, 62 F.3d 1295 (11th Cir. 1995):
We begin any ineffective assistance inquiry with “a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” [Strickland v.
Washington, 466 U.S. 668,] at 689, 104 S.Ct. [2052] at
2065 [ (1984) ]; accord, e.g., Atkins v. Singletary, 965 F.2d
952, 958 (11th Cir. 1992) (“We also should always presume
strongly that counsel's performance was reasonable and
adequate. . . .”), cert. denied, [515] U.S. [1165], 115 S.Ct.
2624, 132 L.Ed.2d 865 (1995). “[A] petitioner seeking to
rebut the strong presumption of effectiveness bears a
difficult burden.” Waters v. Thomas, 46 F.3d 1506, 1512
(11th Cir. 1995) (en banc).
224
62 F.3d at 1299. Jenkins has failed to satisfy the Strickland test.
Jenkins, 972 So. 2d at 135-37.
As the state court noted, Jenkins has presented nothing more than a laundry list
of objections he believes counsel could have made during the trial. Even assuming that
counsel could be found deficient for failing to make each of these objections, Jenkins
has offered nothing to suggest that there is a reasonable probability that, had counsel
made them, the outcome of his trial would have been different. Because he has failed
to establish that he was prejudiced as a result of counsel’s failure to make these
objections, this Court finds that the state court’s determination that Jenkins failed to
meet the Strickland standard was neither contrary to nor an unreasonable application
of clearly established Federal law, nor was it based upon an unreasonable determination
of the facts.
i.
Failure to present a coherent and consistent
theory of defense
Finally, Jenkins argues that counsel were ineffective for failing:
to present a coherent and consistent theory to the jury and, in presenting
mutually inconsistent theories – innocence based on misidentification and
manslaughter based on intoxication – undermined both. See Cave v.
Singletary, 971 F.2d 1513 (11th Cir. 1992) (finding trial counsel
ineffective for talking out of both sides of her mouth by arguing defendant
was guilty of armed robbery but then trying to convince the jury she was
not guilty of felony murder).
225
(Doc. 12 at 73). Jenkins presented this claim in his amended Rule 32 petition and on
appeal from the denial of that petition, but the Rule 32 court was the last court to
specifically address the claim. In denying the claim, the trial court held:
As part of this claim, Jenkins asserts that “[t]rial counsel's
ineffectiveness included, but is not limited to, . . . failing to develop and
argue a coherent defense theory of the case.” (Jenkins's amended petition
at p. 14) To the extent that any of the general claims above relate to
specifically pled claims found elsewhere in Jenkins's petition, this Court
incorporates by reference any applicable portions of this order. However,
in so far as the above quoted contentions are set forth as independent
claims, they are dismissed for failure to meet the “clear and specific
statement of the grounds” requirement of Rule 32.6(b), which requires
that a claim for relief include "full disclosure of the factual basis" of the
grounds upon which relief is sought. Jenkins has failed to meet this
requirement.
(Rule 32 C.R. Vol. 45, Tab 77 at 315-16).
Jenkins asserts that defense counsel failed to present a coherent and consistent
theory to the jury by arguing “mutually inconsistent theories” in their closing statement
to the jury. (Id.). He submits that, in their closing argument, defense counsel argued that
Jenkins was innocent based upon misidentification and also argued that Jenkins
committed manslaughter because he was too intoxicated to form the intent to kill the
victim. (Id.). However, a review of closing argument reveals that the focus of the
defense counsel’s argument was that Jenkins was not the perpetrator of the crime. (R.
Vol. 8, Tab 12 at 1561-99; R. Vol. 9 at 1600-03). Defense counsel argued that Jenkins
226
lacked intent to commit any crime, or even to see the victim the night of the crime, and
that he was too intoxicated to have committed the crime, given the short timeline of
events. (Id.). It was not until the very end of the closing argument that defense counsel
argued for a finding of manslaughter. (Id. at 1602-03). At that point, counsel argued
that:
And when you [weigh] the evidence of intent, when you look to see if
there was any evidence based on what you heard and on what the State
brought you, that Mark Allen Jenkins intended to cause the death of
Tammy Hogeland, I believe that after considering the evidence that if you
are convinced beyond a reasonable doubt that Mark Allen Jenkins was
involved in the death of Tammy Hogeland, and again, I attempted to
address some of the reasonable doubt as to identification, but if you are
convinced, then I submit to you that the appropriate verdict in this case is
a verdict for manslaughter, not capital murder, but for reckless murder
under manslaughter.
(Id. at 1602-03). Counsel did not argue inconsistent theories. Clearly the defense theory
was that Jenkins could not have and, in fact, did not commit the crime. Counsel only
urged at the end of the argument that, if the jury did not accept Jenkins’s argument that
he was not the perpetrator of the crime, they should not convict him of capital murder
because of the lack of evidence of intent to kill. Defense counsel never argued that
Jenkins committed manslaughter or even conceded that Jenkins was involved with the
victim’s death at all.
However, even if counsel could be found constitutionally deficient for his closing
227
argument, Jenkins has offered nothing to indicate that he was prejudiced. Thus, the trial
court’s finding that Jenkins failed to allege a factual basis for a claim of ineffective
assistance of counsel was not contrary to or an unreasonable application of Federal law,
and it was not based upon an unreasonable determination of the facts.
5.
The Cumulative Effect of Counsel’s Errors Deprived Mr.
Jenkins of the Effective Assistance of Counsel
Finally, Jenkins argues that:
While each of these specific deficiencies warrant a new trial and
sentencing, when taken together, their cumulative impact denied Mr.
Jenkins of his right to the effective assistance of counsel, due process, a
fair trial, and to a reliable guilt and punishment determination. See
Williams v. Taylor, 529 U.S. 362, 399 (2000) (holding state court correct
in concluding that “the entire postconviction record, viewed as a whole
and cumulative of mitigation evidence presented originally,” raised
reasonable probability that result of sentencing proceeding would have
been different) (emphasis added); see also Dobbs v. Zant, 506 U.S. 357,
359 n. (1993) (holding that “an inadequate or harmful closing argument,
when combined . . . with a failure to present mitigating evidence, may be
highly relevant to the ineffective-assistance determination under Eleventh
Circuit law”) (emphasis added); United States v. Cronic, 466 U.S. 648,
657 n.20 (1984) (acknowledging that “the Court of Appeals focused on
counsel's overall representation of respondent, as opposed to any specific
error or omission counsel may have made”).
(Doc. 12 at 73-74).
Jenkins raised this claim on appeal from the denial of his Rule 32 petition. (Rule
32 C.R. Vol. 37, Tab 52 at 130). However, the Alabama Court of Criminal Appeals did
not specifically rule on the claim. Absent any showing by Jenkins that the state court
228
inadvertently overlooked this claim, this court presumes that the Alabama Court of
Criminal Appeals denied the claim on the merits. Johnson v. Williams, 133 S.Ct. 1088,
1094-97 (2013); Harrington v. Richter, 562 U.S. 86, 97–100 (2011).
“The cumulative-error doctrine provides that ‘a sufficient agglomeration of
otherwise harmless or nonreversible errors can warrant reversal if their aggregate effect
is to deprive the defendant of a fair trial.’” Finch v. Secretary, Dept. of Corrections,
No. 14–12981, 2016 WL559363 at *5 (11th Cir. Feb. 12, 2016) (quoting Insignares
v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1284 (11th Cir. 2014)). “We address
claims of cumulative error by first considering the validity of each claim individually,
and then examining any errors that we find in the aggregate and in light of the trial as
a whole to determine whether the appellant was afforded a fundamentally fair trial.”
Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (citing United
States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
The Eleventh Circuit Court of Appeals has made clear that where there is no
error, a cumulative error argument is without merit. Insignares v. Sec'y, Fla. Dep't of
Corr., 755 F.3d 1273, 1284. None of Jenkins’s ineffective assistance of counsel claims
has any merit, therefore, there is nothing to aggregate. Accordingly, the Alabama Court
of Criminal Appeals finding that Jenkins’s cumulative error argument was without merit
was not contrary to or an unreasonable application of Federal law, and was not based
229
upon an unreasonable determination of the facts.
D.
The State Failed To Disclose Brady Evidence to the Defense
Jenkins argues that the state failed to disclose exculpatory information and
mitigating evidence and thereby deprived him of his rights to due process, a fair trial,
and a reliable sentencing proceeding in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments. (Doc. 12 at 74-76). Specifically, he complains that the state:
(1) “suppressed various reports and documents demonstrating that a person fitting the
description of the suspect, other than Mr. Jenkins, was arrested and extradited back to
Alabama to answer questions in connection with Tammy Hogeland’s murder,” and (2)
“withheld compelling evidence developed by a state facility.” (Id. at 74-75). In Brady
v. Maryland, the Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused . . . violates due process where the evidence is
material either to guilt or to punishment.” Brady, 373 U.S. 83, 87 (1963). A Brady
violation has three components: “(t)he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The prejudice
or materiality requirement is satisfied if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
230
different.” United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v.
Whitley, 514 U.S. 419, 433 (1995). Materiality is determined by asking whether the
government’s evidentiary suppressions, viewed cumulatively, undermine confidence
in the guilty verdict. See Kyles, 514 U.S. at 434, 436-37 & n. 10.
Jenkins unsuccessfully raised his Brady claim in his Amended Rule 32 petition,
and the Alabama Court of Criminal Appeals affirmed the trial court’s denial of relief:
Jenkins argues that the State failed to comply with Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing
to disclose exculpatory evidence. Specifically, he argues that police failed
to disclose that another individual had been arrested and detained for the
murder and that the State also withheld evidence about Jenkins’s
background and character.
The circuit court made the following findings about this issue:
Jenkins alleged . . . that the prosecution failed to
make available to him “exculpatory materials” and
“mitigating evidence” in violation of Brady v. Maryland,
373 U.S. 83 (1963). Jenkins specifically claims: (1) that the
prosecution failed to provide him with evidence that another
suspect had been questioned about Tammy Hogeland’s
murder, and (2) that the prosecution withheld mitigating
evidence at the penalty phase. This mitigating evidence
included aspects of Jenkins’s allegedly abusive childhood.
Although not specifically referenced in his amended petition,
this mitigating evidence was apparently contained in
Jenkins’s Taylor Hardin [Secure Medical Facility] records
and in the pre-sentence report.
Turning first to the “other suspect” information, the
Court finds that Jenkins did not meet his burden of proving
231
this Brady claim at the evidentiary hearing. A Brady
violation occurs where (1) the prosecutor suppressed
evidence; (2) the evidence was favorable to the defendant;
and (3) the evidence was material to the issues at trial.
Initially, Jenkins did not prove that the evidence was
suppressed.
The St. Clair County District Attorney and
prosecuting attorney at Jenkins’s trial, Van Davis, testified
at the evidentiary hearing that his discovery policy now, and
at the time of Jenkins’s trial, was an “open-file policy.”
Anything in the file was available to defense counsel for
inspection and copying. When shown Petitioner’s Exhibit 4,
the alleged “other suspect” information, Mr. Davis testified
that he recognized the document, that it was part of the file,
and that it was absolutely not withheld from Jenkins’s trial
counsel. Mr. Davis testified that it was his policy at the time
of Jenkins’s trial to make the entire file available to the
defense. Defense counsel would then be allowed to go
through the file and identify and mark any material they
wanted copied. The D.A.’s office would then make
photocopies for defense counsel. This testimony
contradicted Jenkins’s trial counsel’s earlier testimony that
he was not permitted to photocopy the file, but instead had
to copy by hand the information he wanted. According to
both parties, defense counsel was permitted to spend as
much time looking at the file as was needed.
Mr. Davis further testified that he never removed
anything from Jenkins’s file and considered nothing in a
capital case to be work product. He stated that nothing had
been added to the file in the time period between the end of
Jenkins’s trial and the turning over of the file to the Attorney
General’s Office, unless it was some type of post-conviction
pleadings.
The Court also finds contradictions in Mr. Scofield’s
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testimony concerning the police report of the “other
suspects.” Mr. Scofield initially testified at the evidentiary
hearing that he did not “remember seeing anything in the file
about other suspect,” but subsequently testified that he was
“absolutely positive” that he did not see the police report in
the file. Based upon the testimony presented at the
evidentiary hearing, the observation of the witnesses, and
credibility determinations, it is the Court’s finding that
Jenkins has failed to prove that the “other suspect” report
was withheld by the prosecution in violation of Brady.
Even assuming arguendo that the “other suspect”
information was withheld, the Court further finds that
Jenkins has failed to prove that the information was either
exculpatory or material. The “other suspect” information
consisted of a Jackson, Mississippi, “Police Department
Offense/Supplementary,” wherein there was information
from a Mississippi officer that an individual had been
detained in that State. According to the report, the man had
been traveling on a bus, reportedly talking about killing and
shooting people, and was taking pills. The individual had
signs of scars or scratches on his left forearm, and had in his
possession bus tickets to continue on to Dallas, El Paso, San
Diego, and San Francisco. He also had in his possession
tickets that had been used from Richmond, Philadelphia, and
Washington, D.C. The tickets had been purchased in Fort
Lauderdale.
The individual had been detained because Mississippi
officials had received a teletype from St. Clair County
concerning Jenkins. The individual told the officer that he
thought he began riding the bus on April 19, 1989. He stated
that he was asleep on the bus when it arrived in Birmingham
and he could not remember if he had gotten off the bus. The
supplement also contained information that the individual
detained in Mississippi matched Jenkins’s description
except for his weight. The individual detained in Mississippi
233
weighed 250 pounds, almost 100 pounds more than the
165-pound Jenkins.
The Court finds that this information was not
exculpatory. The fact that an individual was detained in
Mississippi who resembled Jenkins in no way exculpated
Jenkins in Tammy Hogeland’s murder. Van Davis testified
at the evidentiary hearing that a [be on the lookout] had been
sent to agencies between Alabama and California that
Jenkins was possibly traveling by bus. Mr. Davis further
testified that they were not looking for an unknown suspect,
but that they were looking for Jenkins. The person detained
in Mississippi, although generally matching Jenkins’s
physical description, did not match Jenkins’s weight. As
previously noted, Jenkins, at the time of his arrest, weighed
approximately 100 pounds less than the individual detained
in Mississippi.
The amount of evidence incriminating Jenkins in
Tammy Hogeland’s murder, at the time the individual in
Mississippi was detained, was overwhelming. Once it was
determined that the individual detained in Mississippi was
not Jenkins, the authorities continued to search for
Hogeland’s murderer. The detention of the individual in
Mississippi did not exculpate Jenkins and, thus, no Brady
violation occurred.
Although unnecessary, the Court will go yet another
step further to show that, even assuming that the evidence
was both suppressed and exculpatory, Jenkins did not prove
that it was material. The other suspect information would
have been material “only if there [was] a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” United
States v. Bagley, 473 U.S. 667, 682 (1985). Jenkins has
234
offered no evidence that the “other suspect” information
would have, to a reasonable probability, changed the
outcome of his trial. The evidence establishing Jenkins’s
guilt was overwhelming, and the information would not have
influenced the outcome of his trial.
Moreover, the report was inadmissible hearsay and
Jenkins could not prove that it would have been admissible
at his trial. Alabama law provides that “other suspect”
information is not admissible. “It is recognized that an
accused is not entitled to prove, without more, that another
has been suspected of committing the crime for which the
accused is being tried.” Land v. State, 678 So.2d 201, 207
(Ala.Crim.App. 1995). “The general rule in Alabama is that
an accused is not entitled to introduce testimony that
someone else was suspected of committing the crime for
which he is being tried.” Land, 678 So.2d at 207. Here, the
“other suspect” was not a suspect at all. He was detained
because there was a possibility that he was Mark Allen
Jenkins, the one and only suspect. For the above reasons,
there was no Brady violation concerning the “other suspect”
information.
Turning next to the alleged withholding of mitigating
evidence at the penalty phase, the Court again finds that
there was no Brady violation. The information that Jenkins
complains was withheld, allegedly mitigating aspects of his
childhood and adolescent years that are detailed on page 28
of the amended petition, was information that was within
Jenkins’s knowledge and could not have been suppressed by
the prosecution. There is no Brady violation where the
information was available to the defense at the time of trial.
Carr v. State, 505 So.2d 1294, 1297 (Ala.Crim.App. 1987).
Moreover, defense counsel testified at the evidentiary
hearing that he had some knowledge of most of the
information that Jenkins now claims was withheld.”
235
(C.R. 283-88.) The circuit court’s findings are correct.
To establish a Brady violation a defendant must show (1) that the
prosecution suppressed evidence, (2) favorable to the defendant or
exculpatory, and (3) material to the issues at trial. Martin v. State, 931
So.2d 736, 744 (Ala.Crim.App. 2003).
Here, the record shows that Jenkins was identified as the individual
who was last seen with the victim. The police were never looking for
another suspect. A BOLO (be on the lookout) was issued for Jenkins, and
a person who resembled Jenkins was arrested in Mississippi. This
information was not exculpatory evidence.
Moreover, any evidence about Jenkins’s childhood that he alleges
was withheld was information within his knowledge.
‘There is no Brady violation where the information in
question could have been obtained by the defense through
its own efforts.’ Johnson [v. State ], 612 So.2d [1288] at
1294 [ (Ala.Crim.App. 1992) ]; see also Jackson v. State,
674 So.2d 1318 (Ala.Cr.App. 1993), aff’d in part and rev’d
in part on other grounds, 674 So.2d 1365 (Ala. 1995). ‘
“Evidence is not ‘suppressed’ if the defendant either knew
. . . or should have known . . . of the essential facts
permitting him to take advantage of any exculpatory
evidence.” United States v. LeRoy, 687 F.2d 610, 618 (2d
Cir. 1982)[, cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74
L.Ed.2d 1019 (1983) ].’ Carr v. State, 505 So.2d 1294,
1297 (Ala.Cr.App. 1987) (noting, ‘The statement the
appellant contends was suppressed in this case was his own,
and no reason was set forth to explain why he should not
have been aware of it.’). Where there is no suppression of
evidence, there is no Brady violation. Carr, 505 So.2d at
1297.
Freeman v. State, 722 So.2d 806, 810-11 (Ala.Crim.App. 1998). Jenkins
has failed to prove that the State violated Brady.
236
Jenkins v. State, 972 So. 2d 111, 155-58 (alterations in original).
With respect to his claim that the state suppressed evidence indicating the
existence of another suspect in the murder, Jenkins contends that John Beraglia, a
person fitting the description of the suspect, was arrested and extradited back to
Alabama to answer questions in connection with Tammy Hogeland’s murder. (Doc. 12
at 74). He adds that Beraglia “became a suspect because of his physical attributes, his
recent flight from Birmingham, suspicious scratches on his arms consistent with having
committed a violent assault, and his admission that he had recently killed someone in
the Birmingham area.” (Id. at 74-75).
However, as the Alabama Court of Criminal Appeals stated, the record shows
that “Jenkins was identified as the individual who was last seen with the victim” and
that the “police were never looking for another suspect.” Jenkins, 972 So. 2d at 157.
Rather, Beraglia, a person who resembled Jenkins, was arrested in Mississippi,
pursuant to a BOLO (be on the lookout) issued for Jenkins. Id.
Jenkins has offered nothing to support his assertion that Beraglia was a separate
suspect in the murder. Thus, the appellate court’s finding that the information regarding
Beraglia’s arrest was not exculpatory evidence (as required to establish a Brady
violation) was neither contrary to nor an unreasonable application of clearly established
Federal law, nor was it based upon an unreasonable determination of the facts in light
237
of the evidence presented in the state court proceeding.
With respect to his claim that the state violated Brady by withholding
“compelling evidence developed by a state facility,” Jenkins contends that this
“evidence showed that Mr. Jenkins suffered from various psychological disorders; was
reared in a chaotic and abusive environment; was chronically scapegoated by his
family; came from a family with a history of mental illness; had a history of depression
and suicide; suffered from drug and alcohol addiction; suffered from learning
disabilities and disorders, and very limited intellectual abilities; failed in school;
suffered from hallucinations; was intoxicated at the time of the offense; had a history
of alcoholic blackouts; made a positive adjustment to incarceration; and had been
respectful and cooperative during his pretrial detention.” (Doc. 12 at 75).
As the Alabama Court of Criminal Appeals noted, this is information that was
clearly within Jenkins’s knowledge. Jenkins, 972 So. 2d at 157. “Evidence is not
‘suppressed’ if the defendant either knew . . . or should have known . . . of the essential
facts permitting him to take advantage of any exculpatory evidence.” United States v.
LeRoy, 687 F.2d 610, 618 (2d Cir. 1982)(cert. denied, 459 U.S. 1174 (1983). Jenkins
has offered nothing to explain why he should not have been fully aware of this
information. Thus, the appellate court’s finding that this information was not
suppressed (as required to establish a Brady violation) was neither contrary to nor an
238
unreasonable application of clearly established Federal law, nor was it based upon an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.
E.
The Trial Court’s Unconstitutional Instructional Errors
Jenkins claims that during both phases of his trial the court “provided
instructions which misled the jury regarding critical aspects of the law and failed to
instruct on several critical legal principles supported by the evidence.” (Doc. 12 at 76).
He adds that these errors were significantly compounded by the prosecutor’s closing
arguments, depriving him of a fair trial. (Id.). Each of the six alleged errors is discussed
separately below.
1.
The Trial Court’s Failure To Instruct the Jury on Applicable
Lesser-Included Offenses
Jenkins first claim is that the trial court’s failure to instruct the jury on robbery
as an afterthought and felony murder or unintentional murder violated his right to a fair
trial, due process, and a reliable determination of guilt and punishment. (Doc. 12 at 7678). At the conclusion of the guilt phase of the trial, the trial judge instructed the jury
on the elements of capital murder during the course of a robbery and during the course
of a kidnapping, on the lesser included offenses of murder and manslaughter, and on
voluntary intoxication. (R. Vol. 9, Tab 14 at 1644-65; 1689-90). The court also
239
instructed the jury that it could return a verdict of not guilty. (Id. at 1682-87).
On direct appeal, Jenkins argued that the jury was entitled to a charge instructing
the jury that they must find that the intent to commit robbery preceded any intentional
murder (C.R. Vol. 12, Tab 28 at 42), and that given the considerable evidence
indicating that he was highly intoxicated at the time of the crime, the jury should have
been allowed to consider whether he possessed the requisite intent to commit capital
murder. (C.R. Vol. 13, Tab 32 at 13-15). Therefore, he reasoned that the jury should
have been charged on robbery as an afterthought and on the lesser included offense of
felony murder.
The state appellate courts considered this claim on the merits and denied it.
The appellant next contends that the trial court’s instructions on
intent were incorrect statements of the law. The appellant maintains that
the trial court should have given the following instruction: “An accused
is not guilty of capital robbery-murder where an intent to deprive the
alleged victim of his or her property is formed only after the alleged
victim is deceased.” The trial court correctly denied this instruction
because it is not consistent with Alabama law. As the state correctly
argues, the relevant law is thoroughly discussed in Hallford v. State, 548
So.2d 526 (Ala.Cr.App.1988), aff’d, 548 So.2d 547 (Ala.), cert. denied,
493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989). We said:
The capital crime of robbery when the victim is intentionally
killed is a single offense beginning with the act of robbing or
attempting to rob and culminating in the act of intentionally
killing the victim; the offense consists of two elements,
robbing and intentional killing. Davis v. State, 536 So.2d
110 (Ala.Cr.App.1987). The intentional murder must occur
240
during the course of the robbery in question; however, the
taking of the property of the victim need not occur prior to
the killing. Clark v. State, 451 So.2d 368 (Ala.Cr.App.),
cert. denied, 451 So.2d 368 (Ala.1984). While the violence
or intimidation must precede or be concomitant with the
taking, it is immaterial that the victim is dead when the theft
occurs. Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983),
aff’d, 460 So.2d 216 (Ala.1984).
As the Alabama Supreme Court held in
Cobern v. State, 273 Ala. 547, 142 So.2d 869
(1962), “the fact that the victim was dead at
the time the property was taken would not
militate [against a finding] of robbery if the
intervening time between the murder and the
taking formed a continuous chain of events.”
Clements v. State, 370 So.2d 708, 713
(Ala.Cr.App.1978), affirmed in pertinent part,
370 So.2d 723 (Ala.1979). To sustain any
other position “would be tantamount to
granting to would-be robbers a license to kill
their victims prior to robbing them in the hope
of avoiding prosecution under the capital
felony statute.”
Although a robbery committed as a
“mere afterthought” and unrelated to the
murder will not sustain a conviction under §
13A–5–40(a)(2) for the capital offense of
murder-robbery, the question of a defendant’s
intent at the time of the commission of the
crime is usually an issue for the jury to resolve.
Crowe v. State, 435 So.2d 1371, 1379
(Ala.Cr.App.1983). The jury may infer from
the facts and circumstances that the robbery
began when the accused attacked the victim
and the capital offense was consummated
241
when the defendant took the victim’s property
and fled. The defendant’s intent to rob the
victim can be inferred where “the intervening
time, if any, between the killing and robbery
was part of a continuous chain of events. . . .”
548 So.2d at 534–35, citing Connolly v. State, 500 So.2d 57
(Ala.Cr.App.1985), aff’d, 500 So.2d 68 (Ala.1986)
(citations omitted). The trial court’s instructions on the
elements necessary to convict the appellant of robbery and
intentional murder were sufficient. See Proposed Pattern
Jury Instructions for Use in the Guilt Stage of Capital
Cases Tried Under Act No. 81–178 (Alabama Bar Institute
for Continuing Legal Education 1982).
Jenkins, 627 So. 2d at 1049.
The Court of Criminal Appeals held that “[t]here was no evidence
to support an instruction on felony-murder [because] the evidence
revealed that the victim died as a result of manual strangulation.” 627
So.2d at 1050.
Jenkins argues that, even assuming the jury believed that he
committed the robbery and/or the kidnapping, it still could have found that
he did not intentionally kill Hogeland during the course of the robbery or
kidnapping; he says the jury could have found he was so intoxicated that
he lacked the specific intent required for capital murder under §
13A–5–40(b), Ala.Code 1975.
We have reviewed the record in this case, including the oral
instructions given to the jury, and we conclude, in view of the particular
facts and circumstances of this case, that the trial judge did not err to
reversal in instructing the jury. See, Wright v. State, 494 So.2d 726
(Ala.Cr.App.1985), affirmed, 494 So.2d 745 (Ala.1986), a capital case
conducted prior to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65
L.Ed.2d 392 (1980). The Court of Criminal Appeals initially reversed
Wright’s conviction and remanded the case on authority of Beck, but the
242
United States Supreme Court, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d
1325 (1982), reversed the judgment and remanded the case to the Court
of Criminal Appeals for further consideration in light of Hopper v. Evans,
456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), which modified
Beck by holding that a lesser included offense instruction must be given
in a capital case “only when the evidence warrants such an instruction.”
Hopper, 456 U.S. at 611, 102 S.Ct. at 2053, 72 L.Ed.2d at 373 (emphasis
in original). See also Ex parte Julius, 455 So.2d 984 (Ala.1984) (a capital
case in which this Court held that even though the trial court’s instruction
was “technically incorrect,” when viewed “in the context of the overall
charge” it was, at most, harmless). In this case, even assuming that the
failure of the trial court to instruct the jury on the lesser included offense
of felony-murder was incorrect, when we view it in the context of the
overall charge to the jury, we, like the Court of Criminal Appeals, find no
reversible error.
Ex parte Jenkins, 627 So. 2d at 1056-57 (alterations in original).
Jenkins argues that these decisions were contrary to and involved an
unreasonable application of Beck v. Alabama, 477 U.S. 625 (1980), and were based
on an unreasonable determination of the facts. (Doc. 12 at 79). Beck addressed
Alabama’s previous capital punishment regimen, under which the trial judge was
specifically prohibited from giving the jury the option of convicting the
defendant of a lesser included offense. Instead, the jury [was] given the
choice of either convicting the defendant of the capital crime, in which
case it [was] required to impose the death penalty, or acquitting him, thus
allowing him to escape all penalties for his alleged participation in the
crime. If the defendant [was] convicted and the death penalty imposed,
the trial judge [was then required to] hold a hearing with respect to
aggravating and mitigating circumstances; after hearing the evidence, the
judge [was permitted to] refuse to impose the death penalty, sentencing
the defendant to life imprisonment without possibility of parole.
243
Beck, 447 U.S. at 628-29 (footnotes omitted).
In Beck, the defendant and an accomplice had been charged with the capital
offense of an intentional killing during the course of a robbery. The evidence adduced
at trial would have entitled the defendant to an instruction on “felony murder” as a
lesser included offense, absent the statutory prohibition on such instructions.
Because of the statutory prohibition, the court did not instruct the
jury as to the lesser included offense of felony murder. Instead, the jury
was told that if petitioner was acquitted of the capital crime of intentional
killing in the course of a robbery, he “must be discharged” and “he can
never be tried for anything that he ever did to Roy Malone [the victim].”
Record 743. The jury subsequently convicted petitioner and imposed the
death penalty; after holding a hearing with respect to aggravating and
mitigating factors, the trial court refused to overturn that penalty.
Id. at 630 (alteration added). Beck appealed, eventually to the United States Supreme
Court, where he argued that:
the prohibition on giving lesser included offense instructions in capital
cases violates both the Eighth Amendment as made applicable to the
States by the Fourteenth Amendment and the Due Process Clause of the
Fourteenth Amendment by substantially increasing the risk of error in
the factfinding process. Petitioner argues that, in a case in which the
evidence clearly establishes the defendant’s guilt of a serious noncapital
crime such as felony murder, forcing the jury to choose between
conviction on the capital offense and acquittal creates a danger that it will
resolve any doubts in favor of conviction.
Id. at 632 (emphasis added) (footnote omitted)51. The Supreme Court agreed, holding
51
The Supreme Court granted certiorari to decide the following question:
244
that Alabama’s statutory prohibition on giving lesser included offense instructions in
capital cases was unconstitutional because it substantially increased the risk of
prejudicial error in the factfinding process. Beck, 447 U.S. at 637 (“[W]hen the
evidence unquestionably establishes that the defendant is guilty of a serious, violent
offense – but leaves some doubt with respect to an element that would justify
conviction of a capital offense – the failure to give the jury the ‘third option’ of
convicting on a lesser included offense would seem inevitably to enhance the risk of
an unwarranted conviction.”).
Jenkins is not entitled to habeas relief based on the claim that the trial court
failed to instruct the jury on robbery as an afterthought and felony or unintentional
murder in violation of Beck. Beck has not been extended by the Supreme Court. In fact,
the Court has taken pains to explain that Beck’s holding does not stretch beyond the
peculiar facts it addressed. See id. at 635 (“Alabama’s failure to afford capital
defendants the protection provided by lesser included offense instructions is unique in
American criminal law.”) (emphasis added) (footnote omitted). For example, in Schad
“May a sentence of death constitutionally be imposed after a jury verdict of
guilt of a capital offense, when the jury was not permitted to consider a verdict of
guilt of a lesser included non-capital offense, and when the evidence would have
supported such a verdict?”
Beck v. Alabama, 447 U.S. at 627 (quoting Beck v. Alabama, 444 U.S. 897 (1979) (memorandum)).
245
v. Arizona, 501 U.S. 624 (1991), the Court rejected an argument that due process
required a jury in a capital case to be instructed on every lesser included offense
supported by the evidence:
Petitioner’s second contention is that under Beck v. Alabama, 447
U.S. 625 (1980), he was entitled to a jury instruction on the offense of
robbery, which he characterizes as a lesser included offense of robbery
murder. Beck held unconstitutional an Alabama statute that prohibited
lesser included offense instructions in capital cases. Unlike the jury in
Beck, the jury here was given the option of finding petitioner guilty of a
lesser included noncapital offense, second-degree murder. While
petitioner cannot, therefore, succeed under the strict holding of Beck, he
contends that the due process principles underlying Beck require that the
jury in a capital case be instructed on every lesser included offense
supported by the evidence, and that robbery was such an offense in this
case.
Petitioner misapprehends the conceptual underpinnings of Beck.
Our fundamental concern in Beck was that a jury convinced that the
defendant had committed some violent crime but not convinced that he
was guilty of a capital crime might nonetheless vote for a capital
conviction if the only alternative was to set the defendant free with no
punishment at all. We explained:
“[O]n the one hand, the unavailability of the third option of
convicting on a lesser included offense may encourage the
jury to convict for an impermissible reason – its belief that
the defendant is guilty of some serious crime and should be
punished. On the other hand, the apparently mandatory
nature of the death penalty may encourage it to acquit for an
equally impermissible reason – that, whatever his crime, the
defendant does not deserve death . . . . [T]hese two
extraneous factors . . . introduce a level of uncertainty and
unreliability into the factfinding process that cannot be
altered in a capital case.” [Beck, 447 U.S. at 642-43]
246
(footnote omitted).
We repeatedly stressed the all-or-nothing nature of the decision
with which the jury was presented. See id., at 629, 630. 632, 634, 637,
642-43, and n.19. As we later explained in Spaziano v. Florida, 468 U.S.
447, 455 (1984), “[t]he absence of a lesser included offense increases the
risk that the jury will convict . . . simply to avoid setting the defendant
free . . . . The goal of the Beck rule, in other words, is to eliminate the
distortion of the factfinding process that is created when the jury is forced
into an all-or-nothing choice between capital murder and innocence.” See
also, Hopper v. Evans, 456 U.S. 605, 609 (1982). The central concern of
Beck is simply not implicated in the present case, for petitioner’s jury was
not faced with an all-or-nothing choice between the offense of conviction
(capital murder) and innocence.
Schad v. Arizona, 501 U.S. at 645-47 (citations and footnote omitted).
Beck and its progeny do not entitle Jenkins to a jury instruction on robbery as an
afterthought, or on felony murder. Therefore, the state appellate courts’ denial of this
claim was neither contrary to nor an unreasonable application of Beck. The United
States Supreme Court in Schad instructed that Beck’s holding applied only to the “all
or nothing” situation faced by the jury in Beck. Jenkins’s circumstances are not akin to
those of the petitioner in Beck, because the jury in Jenkins’s case was not faced with
a decision to convict him of capital murder or acquit him completely. Instead, his jury
was instructed on several lesser included offenses. If the jurors had been convinced that
Jenkins had committed a homicide, but not convinced that he was guilty of capital
murder, they were presented with the option of convicting him of the lesser-included,
247
noncapital offense of murder. Moreover, the jurors were also instructed on
manslaughter and voluntary intoxication. These instructions allowed the jury to
determine whether Jenkins’s intoxication was so extreme that it negated the specific
intent element required to commit murder, which would have justified a manslaughter
conviction. Thus, Jenkins’s jury was not “faced with an all-or-nothing choice between
the offense of conviction (capital murder) and innocence.” Schad, 501 U.S. at 647.
Jenkins has failed to show that the state appellate courts’ denial of this claim was
either “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). Likewise, he has failed to show that the adjudication of this claim was
based upon an unreasonable determination of the facts.
2.
The Trial Court’s Failure To Instruct the Jury on
Voluntariness
Jenkins maintains that, in its guilt phase jury charge, “the trial court made no
reference to [his] custodial statements and specifically did not instruct the jury to
determine first whether it was voluntary before deciding whether to rely on it in
reaching a verdict.” (Doc. 12 at 79). He asserts that “[b]ecause the voluntariness of a
purported confession by a defendant is an issue of fact which he is entitled to have
determined ultimately by the jury, even where the trial court already has separately
248
found the statements to be admissible,” the trial court’s failure to instruct the jury on
voluntariness violated his rights to due process, a fair trial, and a reliable determination
of guilt and punishment. (Id. at 79-80).
Jenkins first raised this claim in state court in his brief on certiorari to the
Alabama Supreme Court on direct appeal. (C.R. Vol. 14, Tab 35 at 11-15). The
Alabama Supreme Court specifically addressed just one claim in its opinion affirming
the Alabama Court of Criminal Appeals’ affirmance of Jenkins’s conviction and death
sentence. Ex parte Jenkins, 627 So. 2d 1054 (Ala. 1993).52 However, the court noted
the following in its opinion:
The petitioner, Mark Allen Jenkins, raises numerous issues for our
review, all of which, as far as we can tell, were also raised on direct
appeal to the Court of Criminal Appeals and addressed by that Court in
an opinion. Jenkins v. State, 627 So. 2d 1034 (Ala. Crim. App. 1992).
....
We have carefully reviewed the opinion of the Court of Criminal
Appeals, the transcript of the trial, and the briefs and the oral arguments
of the parties, and we conclude that the judgment of conviction and
sentence of death were due to be affirmed. . . .
....
Although we have not addressed Jenkins’s other arguments
specifically, we have examined the record very carefully and we have also
52
The only claim addressed by the Alabama Supreme Court was whether the trial court erred in
refusing to instruct the jury on the lesser-included offense of felony or unintentional murder. Id.
249
reviewed the propriety of the sentence of death, as we are required to do,
and we conclude that the Court of Criminal Appeals properly affirmed the
judgment of conviction and the sentence of death.
Id. at 1054-57.
The respondent argues that the Alabama Supreme Court denied this claim on the
merits. (Doc. 20 at 90). Jenkins, in turn, argues that the “state court adjudication of this
claim resulted in a decision that was contrary to, and involved an unreasonable
application of clearly established United States Federal law” and was “also based upon
an unreasonable determination of the facts.” (Doc. 12 at 80).
However, the Alabama Supreme Court was mistaken when it stated that each
issue presented to it had been “raised on direct appeal to the Court of Criminal Appeals
and addressed by that Court in an opinion.” Ex parte Jenkins, 627 So. 2d at 1054. This
issue was neither presented to nor addressed by the Alabama Court of Criminal
Appeals. When the Alabama Supreme Court affirmed the appellate court’s affirmance
of Jenkins’s conviction and death sentence, it did not resolve the merits of this claim,
since the claim was never presented to the appellate court. When a state court does not
resolve the merits of a § 2254 petitioner’s claim, no deference under § 2254(d)(1) is
owed. Calhoun v. Sec’y, Florida Dep’t of Corrections, 607 Fed. Appx. 968, 970-71
(11th Cir. 2015) (citing Davis v. Sec’y for the Dep’t of Corrections, 341 F.3d 1310,
1313 (11th Cir. 2003)). Thus, this court will review this claim de novo.
250
This claim concerns a statement Jenkins made to Sergeant Mark L. Winters and
Detective Jerome Beck of the Los Angeles County Sheriff’s Department on May 2,
1989, when he was in custody in California. The officers testified at trial about the
statement. Sergeant Winters and Detective Beck testified that they met Jenkins on May
2, 1989, when they interviewed him at the Central Jail in Los Angeles. (R. Vol. 6 at
1136-38, 1143, 1198). Prior to interviewing him, Sergeant Winters read the standard
Miranda warning to Jenkins, after which Jenkins stated that he understood his rights
and wanted to talk to the officers about the case, without the presence of an attorney.
(Id. at 1138-42, 1198). Neither officer made threats or promises of any nature to induce
Jenkins to give a statement. (Id. at 1142, 1198). Although the interview was not
recorded, Sergeant Winters made notes during the interview, as was his practice in
conducting investigations. (Id. at 1144-45). Jenkins told the officers that he had been
arrested by the FBI the day before, at the home of one of his relatives in Wilmington,
California (Id. at 1146). Jenkins initially denied knowing anyone in Alabama named
Tammy Hogeland, but later indicated that he did know a lady named Tammy who
worked at an Omelet Shoppe. (Id. at 1149-53).
Jenkins claimed that on the night of April 16, 1989, he got extremely intoxicated
at a party at his friend Christine’s house. (Id. at 1154-56). He left the party at around
2:00 a.m. on the morning of April 17, 1989, then returned home and slept until 9:00
251
a.m. (Id.). When he woke up on April 17, 1989, he realized he was late for work and
would probably lose his job, so he decided to return to California. (Id. at 1156-57).
Jenkins stated that he sold his car to a man named Steve at Rocky Ridge Hardware,
then returned home to pack his belongings. (Id. at 1157). His friend Mitchell Babb gave
him a ride to the Greyhound Bus Terminal, where he purchased a ticket he believed
would take him to Arizona. (Id.). However, his ticket only got him to Houston, Texas,
where he was ejected from the bus. (Id. at 1157-58).
When the officers asked Jenkins about a red Mazda RX7 sports car, Jenkins
denied ever being in an RX7 in his entire life. (Id. at 1162). However, he stated that he
wished he “had been in one,” because “it’s a nice car.” (Id. at 1163). Jenkins asked the
officers what the significance of the RX7 was, and they advised him that he had been
seen in the vehicle with the victim. (Id.).
Jenkins then changed his story about the night before he left Alabama. (Id. at
1158, 1163). When the officers asked Jenkins if he had ever been in an RX7, he
answered, “Leon’s Texaco.” (Id. at 1164). He stated that after he left the party at
Christine’s house at 2:30 or 3:00 a.m April 17, 1989, he parked his car at Leon’s
Texaco and walked home. (Id. at 1159, 1164). The next morning, he returned to Leon’s
Texaco at 7:30 a.m. to find that someone had tried to steal his car. (Id.). Jenkins stated
that he later drove his car to “Bell Camps Market” to make a phone call to his mother
252
in California, to ask her for money to return to California. (Id. at 1160-61). While he
was there, he saw Christine who told him her mother was angry at him because when
he was leaving early that morning, he fell down the stairs and woke some of the
neighbors. (Id. at 1161). Jenkins stated that he did not remember falling down but he
did have a small bump on his forehead, that he did remember being too drunk to drive
home after the party, but that he did not suffer from blackouts of memory loss due to
his intoxication. (Id.). Jenkins then stated the he sold his car for $88 to an unknown
individual, then saw his friend Mitchell Babb who drove him to the bus station. (Id. at
1162).53 He also claimed that he smoked marijuana on the bus to Texas. (Id.).
Jenkins denied having any involvement with the victim’s death or ever having
blackouts. (Id. at 1164-65). He stated that he was “a little hung over” on the day he left
Alabama on the bus, but still had a good memory of the events leading up to his leaving
the state. (Id. at 1165). Jenkins was able to describe the uniforms worn by waitresses
at the Omelet Shoppe and recounted his activities after leaving Alabama, including
things he did in Houston, Phoenix, and San Diego, on the way to Los Angeles. (Id.)
Jenkins stated that he unsuccessfully tried to get money from the Salvation Army in
Houston for a bus ticket to Los Angeles, then hitchhiked to Phoenix, then to San Diego,
53
At various times during the interview, Jenkins stated that he left Alabama on April 17, 18, and 19,
1989. He finally settled on April 17, 1989, as being the date he left the state. (Id. at 1183).
253
and finally to Los Angeles, where he arrived the morning of April 22 or 23, 1989. (Id.
at 1181-82).
Jenkins again denied any involvement in Tammy Hogeland’s death, stating that
he had only known her as a waitress, and the only contact he ever had with her was
placing an order at the Omelet Shoppe. (Id. at 1165-66). He denied ever being in the
MX7 or any car with the victim, and denied picking her up at the Omelet Shoppe the
night she disappeared. (Id. at 1166).
Jenkins informed the officers that he wanted to provide them with names and
contact information for some people who could provide information about him, but the
information was in his wallet with the rest of his belongings. (Id.). The officers
retrieved Jenkins’s personal property, which had been sealed in a plastic bag with a
heat sealer, and opened the package in Jenkins’s presence. (Id. at 1168, 1198-1200).
Jenkins retrieved his wallet and went through the contents, including a card from a
motel in Harbor City, and another for a golf course in Florida. (Id. at 1168-69; R. Vol.
7 at 1200-1203). Jenkins provided the officers with the contact information for Jim Bob
Sheedy, P.S. Edwards Company, Charles, Easy Turf, Steve Musser, Christine, Al
Vinsant, and Lee Wooten. (R. Vol. 6 at 1179-80).
The trial court did not reference this statement in its charge to the jury. Jenkins
alleges that the trial court’s failure to reference his custodial statement and instruct the
254
jury that it had to first determine whether the statement was voluntary before deciding
whether to rely upon it in reaching a verdict violated his rights to due process, a fair
trial, and a reliable determination of guilt and punishment. (Doc. 12 at 79).
The United States Supreme Court has made it clear that, in the context of jury
instructions,
[t]he only question for [the habeas court] is “whether the ailing instruction
by itself so infected the entire trial that the resulting conviction violates
due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396,
400-01, 38 L.Ed.2d 368 (1973); see also Henderson v. Kibbe, 431 U.S.
145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977); Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431
(1974) (“‘[I]t must be established not merely that the instruction is
undesirable, erroneous, or even “universally condemned,” but that it
violated some [constitutional right]’”). It is well established that the
instruction “may not be judged in artificial isolation,” but must be
considered in the context of the instructions as a whole and the trial
record. Cupp v. Naughten, supra, 414 U.S., at 147, 94 S.Ct., at 400-01.
In addition, in reviewing an ambiguous instruction . . . we inquire
“whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way” that violates the Constitution. Boyde v.
California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316
(1990). FN.
FN. In Boyde, . . . we made it a point to settle on a single
standard of review for jury instructions - the “reasonable
likelihood” standard - after considering the many different
phrasings that had previously been used by this Court. 494
U.S., at 379-380, 110 S.Ct., at 1197-1198 (considering and
rejecting standards that required examination of either what
a reasonable juror “could” have done or “would” have
done). So that we may once again speak with one voice on
this issue, we now . . . reaffirm the standard set out in
255
Boyde.
And we also bear in mind our previous admonition that we “have defined
the category of infractions that violate ‘fundamental fairness’ very
narrowly.” Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668,
674, 107 L.Ed.2d 708 (1990). “Beyond the specific guarantees
enumerated in the Bill of Rights, the Due Process Clause has limited
operation.” Ibid.
Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (alteration added). See also Jones v.
United States, 527 U.S. 373, 389-390 (1999).
Jenkins did not request that the jury be instructed that they first had to determine
whether the custodial statement was voluntary before the jury could rely on the
statement in reaching a verdict, and the trial court did not give such an instruction.
However, the absence of the instruction did not render Jenkins’s trial unfair. Both
Sergeant Winters and Detective Beck testified that Sergeant Winters informed Jenkins
of his Miranda rights, that no one threatened or coerced Jenkins to make a statement,
and that Jenkins indicated his desire to talk to the officers. (R. Vol. 6 at 1138-42,
1198). Further, the court instructed the jury that:
Now, ladies and gentlemen, it is your duty to reconcile all of the
testimony in this case and make it speak the truth if you can. It is a matter
of discretion with you what testimony you will believe or which you will
not believe. You have the right to reject what you think is untrue and
consider only that part which you think is true. And that applies to the
testimony of all the witnesses. If you think that a witness has told the truth
in some matters and his testimony is either untrue or inaccurate as to other
matters, you have the right in your discretion to reject that part which you
256
think is not true and consider only that part which you think is true. On
the other hand, if you believe a witness has willfully and corruptly
testified falsely to a material matter in the case, then the law gives you the
right in your discretion to reject that witness’ testimony entirely if you see
fit to do so. Now, ladies and gentlemen, when you sit in the jury box, you
are just called on to use your common sense like you would do anywhere
else. Therefore, when you listen to the testimony, you have the right not
only to listen to what a witness says, but you have the right to do like you
do in ordinary affairs of life in dealing with men in business matters or
otherwise. That is, you observe the manner and demeanor of the
witnesses on the witness stand, his facial expressions, and so forth, and
you take all of these things into consideration in determining what weight
you will give to his testimony. You also have the right to consider the bias
or interest or any other motive a witness might have which might cause
him to stray from the pathway of truth. In other words, if there is any
reason why a witness is likely not to tell the truth, you have the right to
take that into consideration. If he has an interest the [sic] in the case that
would cause him to hold back a little, or paint the picture a little bit
different than what it was, you of [sic] the right to take that into
consideration. You also have the right to take into consideration any lack
of interest, or lack of any bias, or lack of motive that a witness I [sic]
might have. If he is a disinterested witness and has no reason to tell it
except the way he saw it, of course, you can take that into consideration
also.
(R. Vol. 9, Tab 14 at 1669-71). In light of the testimony of Sergeant Winters and
Detective Beck and the jury instruction regarding determining facts and reconciling
testimony, there is no reasonable likelihood that Jenkins’s trial was rendered
fundamentally unfair by the trial court’s failure to give the charge about which Jenkins
now complains. This claim is due to be dismissed.
3.
The Trial Court’s Improper Instruction Regarding Mr.
Jenkins’s Failure To Testify
257
In the guilt phase of the trial, the trial court instructed the jury as follows:
Ladies and gentlemen, the defendant in this case has elected not to testify.
That is his right. The State has the burden of proving the defendant’s guilt
beyond a reasonable doubt. The defendant is not required to prove his
innocence. Therefore, I instruct you that you are not permitted to draw
any inference or conclusion from the defendant’s failure to testify in this
case.
(R. Vol. 9, Tab 14 at 1687-88).54
Jenkins alleges that this “erroneous and misleading instruction on [the] exercise
of his Fifth Amendment right not to take the stand” violated his “rights to a fair trial,
due process, and a reliable determination of guilt and punishment, under the Fifth,
Sixth, Eighth, and Fourteenth Amendments,” because the instruction “failed to
specifically direct the jury not to draw any inferences adverse to Mr. Jenkins from his
failure to testify. (R1 at 1687-88.).” (Doc. 12 at 80). Jenkins raised this claim for the
first time in his brief on certiorari to the Alabama Supreme Court, following the
affirmance of his conviction and sentence on direct appeal. (C.R. Vol. 14, Tab 35 at
15-22). Like the previous claim, the Alabama Supreme Court erroneously stated that
54
Jenkins requested this instruction. In the requested charge, the third sentence read: “The State has
the burden of proving the defendant’s guilt beyond a reasonable doubt and to a moral certainty.” The
instruction was given exactly as Jenkins proposed it, except the court deleted “and to a moral
certainty” from the charge. (See C.R. Vol. 10, Tab 27 at 181).
258
the Alabama Court of Criminal Appeals had addressed this claim in its opinion.55
Because the state court did not resolve the merits of this claim, no deference under §
2254(d)(1) is owed, and this court will review it de novo. See Calhoun, 607 Fed. Appx.
at 970-71.
The Supreme Court has held that “the Fifth Amendment requires that a criminal
trial judge must give a ‘no-adverse-inference’ jury instruction when requested by a
defendant to do so.” Carter v. Kentucky, 450 U.S. 288, 300 (1981). The purpose of a
“no-adverse-inference” instruction is to “minimize the danger that the jury will give
evidentiary weight to a defendant’s failure to testify.” Id. at 305.
It is undisputed that Jenkins requested a “no-adverse-inference” instruction. It
is further undisputed that the court gave an instruction almost identical to the instruction
Jenkins requested. Jenkins maintains that the instruction given by the trial court was
inadequate because it did not “specifically direct the jury not to draw any inferences
adverse to Mr. Jenkins from his failure to testify.”56 (Doc. 12 at 80).
55
Additionally, the respondent again argues that this claim was adjudicated on the merits in state
court (doc. 20 at 90), and the petitioner argues that the “state court adjudication of this claim resulted
in a decision that was contrary to, and involved an unreasonable application of clearly established
United States Federal law” and was “also based upon an unreasonable determination of the facts.”
(Doc. 12 at 80-81).
56
The instruction advised the jury that it was not to “draw any inference” from Jenkins’s failure to
testify, but did not specifically identify the inference that should not be drawn as being adverse to
Jenkins. (R. Vol. 9, Tab 14 at 1687).
259
In United States v. Russo, the trial court instructed the jury as follows:
The indictment or formal charge against any Defendant is not
evidence of guilt. Indeed, the Defendant is presumed by the law to be
innocent. The law does not require a Defendant to prove his innocence or
produce any evidence at all; and if a Defendant elects not to testify, you
should not consider that in any way during your deliberations. The
government has the burden of proving a Defendant guilty beyond a
reasonable doubt, and if it fails to do so you must find the Defendant not
guilty.
United States v. Russo, 796 U.S. 1443, 1454-55 (11th Cir. 1986). The defendants
argued that the instruction “did not remove all danger that the jury would infer guilt
from their decisions not to testify.” Id. at 1455. The court held that the instruction was
adequate under Carter. Id.
Similarly, other courts have upheld instructions that did not specifically prohibit
drawing an inference adverse to the defendant from his failure to testify. See, e.g.,
United States v. Padilla, 639 F.3d 892, 897 (9th Cir. 2011) (instruction that “the law
prohibits you in arriving at your verdict from considering that the defendant may not
have testified” is “sufficient to put the jury on notice of its obligation to draw no
adverse inference”); United States v. Barraza Cazares, 465 F.3d 327, 332 (8th Cir.
2006) (instruction not to consider defendant’s failure to testify sufficient under Carter
); Welch v. City of Pratt, 214 F.3d 1219, 1220-22 (10th Cir. 2000) (instruction that
jurors “should not consider the fact that the defendant did not testify in arriving at [a]
260
verdict” adequate under Carter); United States v. Ladd, 877 F.2d 1083, 1089 (1st Cir.
1989) (instruction that “the fact that the defendant does not [testify] cannot even be
considered by you in arriving at your verdict” sufficient under Carter).
The instruction given at Jenkins’s trial, including the instruction that “you are not
permitted to draw any inference or conclusion from the defendant’s failure to testify in
this case,” was sufficient to put the jury on notice of its obligation to draw no adverse
inference from Jenkins’s failure to testify, thereby “minimiz[ing] the danger that the
jury” gave evidentiary weight to his failure to testify. See Carter, 450 U.S. at 305. This
claim is without merit.
4.
The Trial Court’s Erroneous Instruction Concerning
Circumstantial Evidence
Jenkins alleges that the trial court’s “misleading and erroneous instruction on
circumstantial evidence” violated his “rights to a fair trial, due process, and a reliable
determination of guilt and punishment, under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.” (Doc. 12 at 81). He objects to the following portion of the trial court’s
guilt phase jury instruction:
Ladies and gentlemen, the guilt of the defendant may be proved by
circumstantial evidence as well as by direct evidence. Circumstantial
evidence is the proof of certain facts and circumstances in a given case
from which a jury may infer other connected facts which usually and
reasonably follow according to the common experience of mankind. The
test of the sufficiency of circumstantial evidence is where the
261
circumstances as proved produce a finding to the exclusion of all
reasonable doubt of the guilt of the accused where they are incapable of
explanation upon any reason [sic] hypothesis consistent with his
innocence. Upon circumstantial evidence there should not be a conviction
unless it excludes every other reason [sic] hypotheses than that of the guilt
of the defendant. No matter how strong may be the circumstances if they
can be reconciled with the theory that someone other than the defendant
may have done the act, then the guilt of the defendant is not shown by that
full measure of proof the law requires. Circumstantial evidence is entitled
to the same weight as direct evidence when it points to the guilt of the
accused.
(R. Vol. 9, Tab 14 at 1665-66). Jenkins asserts that this portion of the instruction
“improperly and unconstitutionally shifted the burden to Mr. Jenkins to show that
‘someone other than the defendant may have done the act,’ before the jury was allowed
to consider finding him not guilty. (R1 at 1665-66). See, e.g., Sandstrom v. Montana,
442 U.S. 510 (1979).” (Doc. 12 at 81).
Jenkins raised this claim for the first time in his brief on certiorari to the Alabama
Supreme Court, following the affirmance of his conviction and sentence on direct
appeal. (C.R. Vol. 14, Tab 35 at 15-22). Like the previous two claims, the Alabama
Supreme Court erroneously stated that the Alabama Court of Criminal Appeals had
addressed this claim in its opinion.57 Because the state court did not resolve the merits
57
Additionally, the respondent again argues that this claim was adjudicated on the merits in state
court (doc. 20 at 90), and the petitioner argues that the “state court adjudication of this claim resulted
in a decision that was contrary to, and involved an unreasonable application of clearly established
United States Federal law” and was “also based upon an unreasonable determination of the facts.”
(Doc. 12 at 81).
262
of this claim, no deference under § 2254(d)(1) is owed, and this court will review it de
novo. See Calhoun, 607 Fed. Appx. at 970-71.
Jenkins claims that the court’s instruction on circumstantial evidence
“improperly and unconstitutionally shifted the burden to [him] to show that ‘someone
other than the defendant may have done the act,’ before the jury was allowed to
consider finding him not guilty.” As previously discussed, in reviewing jury
instructions, the court must consider the challenged instruction in the context of the trial
as a whole and the trial record, to determine whether there is a reasonable likelihood
that the jury applied the challenged instruction in a way that violates the Constitution.
Estelle v. McGuire, 502 U.S. at 72-73.
The record reveals that the trial court further instructed the jury concerning
circumstantial evidence and the state’s burden of proof:
The burden of proof is on the State of Alabama in this case. The
defendant is always presumed to be innocence [sic]. And the fact that he
has been arrested, indicted, and brought before the bar of justice does not
create any presumption against him at all. He comes into the court clothes
[sic] with the presumption of innocence, and that presumption of
innocence remains with him throughout the trial until it’s overcome by
evidence which proves his guilt to each one of you beyond a reasonable
doubt. And the burden is on the State of Alabama to show the guilt of the
defendant from the evidence of the offenses [sic] charged in the
indictment beyond a reasonable doubt before you would be authorized to
convict him. Now, I say that the offense charged in the indictment, that
includes any lesser included offenses embraced in the indictment. You
will want to know what a reasonable doubt is. It is rather difficult to
263
define. Sometime attempting to define it is more confusing than if the
judge leaves it off all together. When I say that the State is under the
burden of proving guilt beyond reasonable doubt that does not mean that
the State must prove an alleged crime beyond every imaginable or
speculated doubt or beyond all possibility of mistake, because that would
be impossible. A reasonable doubt means the actual substantial doubt
arising out of the testimony, or from the lack of the testimony. It is a
doubt for which a reason can be assigned.
....
The Court charges the jury that the innocence of the defendant is
presumed until his guilt is established by the evidence in all material
aspects of the case beyond a reasonable doubt. And it also may be said
that evidence of guilt must be strong and cogent, and, unless it is so strong
and cogent to show that the defendant is guilty to a moral certainty, the
defendant should be found not guilty.
The Court charges the jury that a person charged with an offense
should not be convicted unless the evidence excludes to a moral certainty
every reasonable hypothesis but that of his guilt; no matter how strong the
circumstances are they do not come up to the full measure of proof which
the law requires if they can be reasonably reconciled with the theory that
the defendant is not guilty.
The Court charges the jury that a reasonable doubt can arise from
a part of the evidence. If after considering all of the evidence, you have
a reasonable doubt as to the defendant’s guilt arising out of any part of the
evidence, you must find the defendant not guilty.
The Court charges the jury that when the evidence relied upon for
a conviction is circumstantial, the chain of circumstances must be
complete and [of] such character as to convince beyond a reasonable
doubt, and if they [sic] circumstances shown and proven, with the other
evidence in the case, fails to so convince you beyond a reasonable doubt
that the defendant is guilty, then you should return a verdict of not guilty
in this case.
264
The Court charge[s] the jury that if a conviction in this case
depends upon the testimony of a single witness, and if you have a
reasonable doubt of the truthfulness of the testimony of such witness, you
may acquit the defendant.
The Court charges the jury that you should carefully examine all of
the testimony and that if upon the whole evidence your mind is left in a
state of doubt and uncertainty, so that you cannot say beyond a reasonable
doubt that the defendant is guilty, you must acquit him.
The Court charges the jury that the defendant Mark Allen Jenkins
should not be convicted unless the evidence in this case excludes to a
moral certainly [sic] every reasonable hypothesis but that of his guilt. No
matter how strong the circumstances are, they do not come up to the full
measure of proof which the law requires, if they can be reasonably
reconciled with the theory that Mark Allen Jenkins is not guilty.
Ladies and gentlemen, I charge you that [if] any or all of the
witnesses for the State have exhibited or admitted bias, prejudice, anger,
or ill will against the defendant, or from all of the evidence in the case you
find such bias, prejudice, anger or ill will on the part of all or any of the
State’s witnesses, and if these things, when considered by you in
connection with all the other evidence in the case, create in your minds a
reasonable doubt of the defendant’s guilty [sic], you should acquit him.
The Court charges the jury that if you find from the evidence that
the circumstances in this case only lead to a suspicion of the guilt of the
defendant, then in that event, you cannot convict the defendant.
The Court charges the jury that intent, or the lack thereof, is for the
jury alone to determine.
Ladies and gentlemen, I charge you that while you are under a duty
to draw whatever permissible inferences you may from the evidence in
this case, including circumstantial evidence, mere speculation, conjecture
or surmise that the accused is guilty of the offense charged, does not
authorize a conviction. A defendant should not be convicted on mere
265
suspicion or out of fear that he might have committed the crime. While
reasonable inferences from the evidence may furnish a basis for proof
beyond a reasonable doubt, mere possibility, suspicion, or guesswork, no
matter how strong, will not overturn the presumption of innocence.
(R. Vol. 9, Tab 14 at 1668-69, 1682-86).
After reviewing the entirety of the trial court’s charge to the jury, this court is
satisfied that the jury instructions regarding circumstantial evidence were
constitutionally sufficient. There is no reasonable likelihood that the jury misunderstood
the instructions as requiring Jenkins to prove “someone other than the defendant”
committed the crimes before the jury could consider finding Jenkins not guilty. This
claim is without merit.
5.
The Trial Court’s Improper Reasonable Doubt Instructions
Jenkins maintains that the court’s reasonable doubt instructions violated his right
to due process, a fair trial and a reliable guilt and sentencing determination under the
Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. 12 at 82-83). When he raised
the claim on direct appeal, the Alabama Court of Criminal Appeals found it to be
without merit:
Initially, the appellant contends that the trial court’s instructions on
reasonable doubt violated the United States Supreme Court holding in
Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).
Specifically, he maintains that the instruction imposed a higher degree of
doubt than that required for acquittal under the reasonable doubt standard.
The trial court gave the following instruction:
266
When I say that the State is under the burden of proving
guilt beyond reasonable doubt that does not mean that the
State must prove an alleged crime beyond every imaginable
or speculated doubt or beyond all possibility of mistake,
because that would be impossible. A reasonable doubt
means the actual substantial doubt arising out of the
testimony, or from the lack of the testimony. It is a doubt for
which a reason can be assigned.
The terms in Cage, which the United States Supreme Court found
to be offensive were “grave uncertainty,” “moral certainty,” and “actual
and substantial doubt.” The Supreme Court stated that these terms when
used together suggest a higher degree of doubt necessary to acquit than
that constitutionally mandated. Cage, 111 S.Ct. at 329. See also Gaskins
v. McKellar, 500 U.S. 961, 111 S.Ct. 2277, 114 L.Ed.2d 728 (1991).
“In construing the instruction, we consider how
reasonable jurors could have understood the charge as a
whole. Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct.
1965, 1972, 85 L.Ed.2d 344 (1985). . . . It is plain to us that
the words ‘substantial’ and ‘grave,’ as they are commonly
understood, suggest a higher degree of doubt than is
required for acquittal under the reasonable doubt standard.
When those statements are then considered with the
reference to ‘moral certainty,’ rather than evidentiary
certainty, it becomes clear that a reasonable juror could have
interpreted the instruction to allow a finding of guilt based
on proof below that required by the Due Process Clause.”
Smith v. State, 588 So.2d 561, 568 (Ala.Cr.App. 1991), quoting Cage,
111 S.Ct. at 329–30.
The instruction [given in this case] does not violate the Supreme
Court’s holding in Cage. This court has recently stated, “‘The mere use
of some terminology which happened to also appear in Cage, does not
necessarily constitute reversible error.’ Earhart v. State, 593 So.2d 119,
119 (Ala.Cr.App. 1991).” Herbert Williams v. State, 627 So.2d 985, 992
267
(Ala.Cr.App. 1991). See also Smith, supra; Luther Williams, supra;
McMillian, 594 So.2d at 1283; Adams v. State, 587 So.2d 1265
(Ala.Cr.App. 1991).
Jenkins v. State, 627 So. 2d at 1048-49.
Jenkins argues that the court’s instruction on reasonable doubt, when read as a
whole, violated Cage v. Louisiana, 498 U.S. 39 (1990), because it “impermissibly
allowed for a conviction upon a standard of proof below that required by the Due
Process Clause by suggesting a ‘higher degree of doubt than is required for acquittal
under the reasonable doubt standard.’” (Doc. 12 at 82-83) (citations omitted).
Specifically, he challenges the portion of the jury charge in which the court defined
reasonable doubt as “the actual substantial doubt arising out of the testimony, or from
lack of the testimony,” and “a doubt for which a reason can be assigned.” (Id. at
82)(quoting R. Vol. 9, Tab 14 at 1669). He claims that the instruction was defective
because it “improperly equated ‘reasonable doubt’ with a ‘substantial doubt,’ required
that such a doubt arise from ‘testimony’ - meaning defects in the physical evidence
would be insufficient - and, most important, required any juror with doubts be able to
articulate them and assign them to a specific cause for them to be regarded as
reasonable.” (Id. at 82-83). He argues that the “instruction requiring jurors to articulate
‘substantial’ doubts based on specific testimony is constitutionally infirm because it
requires jurors to arrive at a morally right reason or possess considerable cause before
268
finding a defendant not guilty.” (Id. at 83).
It is well-established that the “government must prove beyond a reasonable
doubt every element of a charged offense.” Victor v. Nebraska, 511 U.S. 1, 5 (1994)
(citing In re Winship, 397 U.S. 358 (1970)). Although the beyond a reasonable doubt
standard is a requirement of due process, “the Constitution neither prohibits trial courts
from defining reasonable doubt nor requires them to do so as a matter of course.” Id.
Indeed, so long as the court instructs the jury on the necessity that the
defendant’s guilt be proved beyond a reasonable doubt, see Jackson v.
Virginia, 443 U.S. 307, 320, n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), the Constitution does not require that any particular form of words
be used in advising the jury of the government’s burden of proof. Cf.
Taylor v. Kentucky, 436 U.S. 478, 485–486, 98 S.Ct. 1930, 56 L.Ed.2d
468 (1978). Rather, “taken as a whole, the instructions [must] correctly
conve[y] the concept of reasonable doubt to the jury.” Holland v. United
States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).
Id. (alterations in original).
In reviewing the constitutionality of such an instruction, the proper inquiry is
whether “there is a reasonable likelihood that the jury understood the instruction to
allow conviction without proof beyond a reasonable doubt.” Tyler v. Cain, 533 U.S.
656, 658 (2001) (footnote omitted)58; see also Johnson v. Alabama, 256 F.3d 1156,
58
In Tyler, the Supreme Court explained the evolution of this standard of review:
In Cage, this Court observed that a reasonable juror “could have” interpreted the
instruction at issue to permit a finding of guilt without the requisite proof. In Estelle
v. McGuire, however, this Court made clear that the proper inquiry is not whether the
269
1192 (11th Cir. 2001) (“[T]he appropriate standard is whether there exists a
‘reasonable likelihood’ that the jury read the instruction to lower the required
threshold.” (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991) and Victor, 511 U.S. at
5-6). The standard requires courts to look at the challenged jury instruction as a whole
and to avoid strained readings. See Jones v. United States, 527 U.S. 373, 391 (1999)
(“We previously have held that instructions that might be ambiguous in the abstract can
be cured when read in conjunction with other instructions.” (citations omitted)).
Jenkins complains about the following sentence from the trial court’s instructions
on reasonable doubt, in which he claims the court equated reasonable doubt with a
substantial doubt, required that such a doubt arise from testimony, and required a juror
with doubts to be able to articulate those doubts and assign a specific cause for them
to be reasonable:
A reasonable doubt means the actual substantial doubt arising out
of the testimony, or from the lack of the testimony. It is a doubt for which
a reason can be assigned.
(R. Vol. 9, Tab 14 at 1668-69). However, the court’s complete instruction on
reasonable doubt was much more extensive:
instruction “could have” been applied unconstitutionally, but whether there is a
reasonable likelihood that the jury did so apply it. . . .
Tyler, 533 U.S. at 658 n. 1 (emphasis in original) (internal citations omitted).
270
Ladies and gentlemen, the guilt of the defendant may be proved by
circumstantial evidence as well as by direct evidence. Circumstantial
evidence is the proof of certain facts and circumstances in a given case
from which a jury may infer other connected facts which usually and
reasonable follow according to the common experience of mankind. The
test of the sufficiency of circumstantial evidence is where the
circumstances as proved produce a finding to the exclusion of all
reasonable doubt of the guilt of the accused where they are incapable of
explanation upon any reason[able] hypothesis consistent with his
innocence. Upon circumstantial evidence there should not be a conviction
unless it excludes every other reason[able] hypotheses [sic] than that of
the guilt of the defendant. No matter how strong may be the
circumstances if they can be reconciled with the theory that someone
other than the defendant may have done the act, then the guilt of the
defendant is not shown by that full measure of proof the law requires.
Circumstantial evidence is entitled to the same weight as direct evidence
when it points to the guilt of the accused.
....
The burden of proof is on the State of Alabama in this case. The
defendant is always presumed to be innocence [sic]. And the fact that he
has been arrested, indicted, and brought before the bar of justice does not
create any presumption against him at all. He comes into the court clothes
[sic] with the presumption of innocence, and that presumption of
innocence remains with him throughout the trial until it’s overcome by
evidence which proves his guilt to each one of you beyond a reasonable
doubt. And the burden is on the State of Alabama to show the guilt of the
defendant from the evidence of the offenses charged in the indictment
beyond a reasonable doubt before you would be authorized to convict
him. Now, I say that the offense charged in the indictment, that includes
any lesser included offenses embraced in the indictment. You will want
to know what a reasonable doubt is. It is rather difficult to define.
Sometime attempting to define it is more confusing than if the judge
leaves it off all together. When I say that the State is under the burden of
proving guilt beyond reasonable doubt that does not mean that the State
must prove an alleged crime beyond every imaginable or speculated doubt
271
or beyond all possibility of mistake, because that would be impossible. A
reasonable doubt means the actual substantial doubt arising out of the
testimony, or from the lack of the testimony. It is a doubt for which a
reason can be assigned.
(R. Vol. 9, Tab 14 at 1665-66; 1668-69). The court continued:
The Court charges the jury that the innocence of the defendant is
presumed until his guilt is established by the evidence in all material
aspects of the case beyond a reasonable doubt. And it also may be said
that evidence of guilt must be strong and cogent, and, unless it is so strong
and cogent to show that the defendant is guilty to a moral certainty, the
defendant should be found not guilty.
The Court charges the jury that a person charged with an offense
should not be convicted unless the evidence excludes to a moral certainty
every reasonable hypothesis but that of his guilt; no matter how strong the
circumstances are they do not come up to the full measure of proof which
the law requires if they can be reasonably reconciled with the theory that
the defendant is not guilty.
The Court charges the jury that a reasonable doubt can arise from
a part of the evidence. If after considering all of the evidence, you have
a reasonable doubt as to the defendant’s guilt arising out of any part of the
evidence, you must find the defendant not guilty.
The Court charges the jury that when the evidence relied upon for
a conviction is circumstantial, the chain of circumstances must be
complete and such character as to convince beyond a reasonable doubt,
and if they circumstances shown and proven, with the other evidence in
the case, fails to so convince you beyond a reasonable doubt that the
defendant is guilty, then you should return a verdict of not guilty in this
case.
The Court charge[s] the jury that if a conviction in this case
depends upon the testimony of a single witness, and if you have a
reasonable doubt of the truthfulness of the testimony of such witness, you
272
may acquit the defendant.
The Court charges the jury that you should carefully examine all of
the testimony and that if upon the whole evidence your mind is left in a
state of doubt and uncertainty, so that you cannot say beyond a reasonable
doubt that the defendant is guilty, you must acquit him.
The Court charges the jury that the defendant Mark Allen Jenkins
should not be convicted unless the evidence in this case excludes to a
moral certainly [sic] every reasonable hypothesis but that of his guilt. No
matter how strong the circumstances are, they do not come up to the full
measure of proof which the law requires, if they can be reasonably
reconciled with the theory that Mark Allen Jenkins is not guilty.
Ladies and gentlemen, I charge you that [if] any or all of the
witnesses for the State have exhibited or admitted bias, prejudice, anger,
or ill will against the defendant, or from all of the evidence in the case you
find such bias, prejudice, anger or ill will on the part of all or any of the
State’s witnesses, and if these things, when considered by you in
connection with all the other evidence in the case, create in your minds a
reasonable doubt of the defendant’s guilty [sic], you should acquit him.
The Court charges the jury that if you find from the evidence that
the circumstances in this case only lead to a suspicion of the guilt of the
defendant, then in that event, you cannot convict the defendant.
The Court charges the jury that intent, or the lack thereof, is for the
jury alone to determine.
Ladies and gentlemen, I charge you that while you are under a duty
to draw whatever permissible inferences you may from the evidence in
this case, including circumstantial evidence, mere speculation, conjecture
or surmise that the accused is guilty of the offense charged, does not
authorize a conviction. A defendant should not be convicted on mere
suspicion or out of fear that he might have committed the crime. While
reasonable inferences from the evidence may furnish a basis for proof
beyond a reasonable doubt, mere possibility, suspicion, or guesswork, no
273
matter how strong, will not overturn the presumption of innocence.
(Id. at 1682-86).
Jenkins asserts that the trial court’s definition of reasonable doubt violated Cage
by impermissibly lowering the prosecution’s burden of proof because it equated
“reasonable doubt” with “actual substantial doubt.” (Doc. 12 at 82-83). He also
complains that the definition suggested that such a doubt could arise from testimony
alone, without regard to the physical evidence, and required that jurors be able to
articulate their doubts and assign them a specific cause for them to be reasonable. (Id.).
While the Supreme Court has agreed that equating reasonable doubt with actual
substantial doubt is “problematic,” the instruction still passes constitutional muster if
the trial court makes it clear that use of the word “substantial” means “not seeming or
imaginary.” Victor v. Nebraska, 551 U.S. 1, 19-20 (1994) (holding that any ambiguity
in equating reasonable doubt with substantial doubt was removed by distinguishing
substantial doubt from a doubt arising from mere possibility, from bare imagination, or
from fanciful conjecture). In other words, if the trial court “makes clear that
‘substantial’ is used in the sense of existence rather than magnitude of the doubt,” any
ambiguities created by the phrase have been rectified and the instruction is
constitutionally sound. Id. at 20. The trial court ended its jury charge by emphasizing
that Jenkins could not be convicted based only on a “suspicion of guilt,” “mere
274
speculation, conjecture or surmise that the accused is guilty of the offense charged,”
“ mere suspicion or out of fear that he might have committed the crime,” or “mere
possibility, suspicion, or guesswork, no matter how strong.” (R. Vol. 9, Tab 14 at
1686). Thus, there is no reasonable likelihood that the jury interpreted the instruction
to lower the prosecution’s burden of proof.
Although Jenkins has not specifically complained about the court’s reference to
“moral certainty” in the jury charge, the court notes that “moral certainty” was used
several times. The use of the phrase “moral certainty,” standing alone, has also been
considered questionable, because it “might not be recognized by modern jurors as a
synonym for ‘proof beyond a reasonable doubt.’” Victor, 511 U.S. at 14. Unless the
remainder of the instruction “lends content to the phrase,” the inherent ambiguities of
“moral certainty” could certainly render an instruction containing that phrase
unconstitutional. Victor, 511 U.S. at 14-15. However, in Jenkins’s case, the court
followed its references to “moral certainty” with the explanation that “no matter how
strong the circumstances are they do not come up to the full measure of proof which
the law requires if they can be reasonably reconciled with the theory that the defendant
is not guilty.” (See id.). Thus, the trial court’s use of the term ‘moral certainty’ in the
present case survives scrutiny.
Jenkins also alleges that the court’s reasonable doubt instruction suggested that
275
a reasonable doubt could arise from testimony alone, without regard to the physical
evidence and required that jurors be able to articulate their doubts and assign a specific
reason for such doubts. (Doc. 12 at 82-83). However, the court clearly instructed the
jury that they were required to consider “all of the evidence” and the “whole evidence”
in the case, not just the testimony of witnesses. (R. Vol. 9, Tab 14 at 1683-84). Further,
the remainder of the charge made it clear to the jury that it was not in fact required to
articulate a specific reason for doubting the evidence, but must acquit Jenkins if the
evidence could be reasonably reconciled with the theory that Jenkins was not guilty.
After reviewing the entirety of the trial court’s charge to the jury, this court is
satisfied that the jury instruction on reasonable doubt was constitutionally sufficient.
Thus, the Alabama Court of Criminal Appeals’ decision was not contrary to or an
unreasonable application of clearly established law, nor was it based upon an
unreasonable determination of the facts in light of the evidence presented in the state
court proceedings.
6.
The Trial Court’s Reference to the Jury’s Verdict as “Merely
Advisory” Was Improper and Prejudicial
Jenkins claims that his rights to a fair trial, due process and a reliable
determination of guilt and punishment under the Sixth, Eighth, and Fourteenth
Amendments were violated “when the trial court instructed the jury, throughout the
276
trial, that its penalty phase verdict was merely advisory.” (Doc. 12 at 84). He argues
that “[i]nevitably, an instruction which informs a jury that its decision is not final, will
be reviewed, or that the moral obligation rests elsewhere, lessens a juror’s sense of
moral responsibility [and] violates Caldwell v. Mississippi, 472 U.S. 320 (1985).” Id.
Jenkins first raised this claim in his Rule 32 petition. (Rule 32 C.R. Vol. 18, Tab
47 at 384-85). The trial court held that the claim was procedurally barred from review
because it could have been but was not raised on appeal. (Rule 32 C.R. Vol. 45, Tab
77 at 280-83). Jenkins raised the claim again on appeal from the denial of his Rule 32
petition. (C.R. Vol. 37, Tab 52 at 146-147). However, the Alabama Court of Criminal
Appeals did not specifically address this claim.59
The last state court to issue a reasoned opinion on this claim was the Rule 32
court which held, as the respondents contend, that the claim was procedurally defaulted
pursuant to Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure. Jenkins has
offered nothing to excuse the procedural default of this claim. Thus, it is procedurally
barred from review in this court.
Alternatively, the claim is without merit. In Caldwell v. Mississippi, 472 U.S.
59
The Alabama Court of Criminal Appeals addressed several claims that the trial court had found to
be procedurally barred because they were not raised on direct appeal, but the claim challenging the
trial court’s reference to the jury’s verdict as “merely advisory” was not included. See Jenkins, 972
So. 2d at 158.
277
320 (1985), the prosecutor “urged the jury not to view itself as determining whether the
defendant would die, because a death sentence would be reviewed for correctness by
the State Supreme Court.” 472 U.S. at 323. The Court held that the comment sought
to minimize the jury’s sense of responsibility for determining the appropriateness of a
death sentence, thereby violating the Eighth Amendment. Id. at 341. The Court found
that the prosecutor’s argument was “inaccurate, both because it was misleading as to
the nature of the appellate court’s review and because it depicted the jury’s role in a
way fundamentally at odds with the role that a capital sentencer must perform,” and
because it was “not linked to any arguably valid sentencing consideration.” Id. at 336.
Jenkins claims that the trial judge “instructed the jury, throughout the trial, that
its penalty phase verdict was merely advisory.” (Doc. 12 at 84). Jenkins has not cited
a single page in the trial transcript where the judge “instructed” the jury that their
verdict in the penalty phase was “merely advisory.”60 Nonetheless, Alabama law
provides that a jury’s role in the penalty phase is “advisory.” Ala. Code § 13A-5-46
(1975). Thus, any “instruction” to the jury that their verdict was advisory was entirely
consistent with Alabama Law. As the Eleventh Circuit Court of Appeals stated in
60
Further, a review of the court’s instructions to the jury in both phases of the trial reveals that, while
the court made several references to the fact that the jury would “recommend” the punishment in the
case, he never specifically stated that the penalty phase verdict would be “merely advisory,” or gave
the jury the impression that their verdict was not final, would be reviewed, or that the moral
obligation of determining the sentence rested elsewhere. (See R. Vol. 9, Tabs 14 and 23).
278
Duren v. Hopper, 161 F.3d 655 (11th Cir. 1998):
In outlining the jury’s proper sphere, the court did not mislead the
jury, diminish its importance, or absolve it of responsibility for its
decision. See Harich v. Dugger, 844 F.2d 1464, 1473 (11th
Cir.1988)(holding that informing jury of its “advisory” function does not
violate Caldwell). FN.
FN. This court in Harich held that “a Caldwell violation
should include some affirmative misstatement or misconduct
that misleads the jury as to its role in the sentencing
process.” Harich v. Dugger, 844 F.2d 1464, 1473 (11th
Cir.1988). There was no such affirmative misinformation in
this case.
Rather, unlike the prosecutor’s comments in Caldwell, the instruction
given by the trial court in this court was accurate and in accordance with
Alabama law. Thus, Duren cannot satisfy the prejudice prong of
Strickland, and his ineffective assistance of counsel claim must fail.
Duren, 161 F.3d at 664. This claim will be denied both because it lacks factual support
in the record and independently and alternatively because it lacks merit.
F.
The Prosecutors Engaged in Misconduct throughout Mr. Jenkins’s Trial
Jenkins asserts that repeated occurrences of prosecutorial misconduct deprived
him of his “right to due process, to a fair trial, and to a reliable guilty [sic] and penalty
phase determination pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments
to the United States Constitution. (Doc. 12 at 85-86). On habeas review of claims of
prosecutorial misconduct, “[t]he relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction a
279
denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
In Spivey v. Head, the Eleventh Circuit Court of Appeals explained:
Improper prosecutorial arguments, especially misstatements of law,
must be considered carefully because “while wrapped in the cloak of state
authority [they] have a heightened impact on the jury.” Drake v. Kemp,
762 F.2d 1449, 1459 (11th Cir. 1985). When assessing this type of claim,
this Court examines the entire context of the judicial proceeding to
determine if it was fundamentally unfair. See Brooks v. Kemp, 762 F.2d
1383, 1400 (11th Cir. 1985) (en banc), vacated, 478 U.S. 1016, 106 S.Ct.
3325, 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d 700 (1987). Not every
improper prosecutorial remark, therefore, renders the trial unfair. See id.
Improper arguments do, however, render the capital sentencing hearing
fundamentally unfair and require reversal when there is a reasonable
probability that they changed the outcome of the case. See id. at 1402.
“‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Id. at 1401 (quoting Strickland v.
Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Spivey v. Head, 207 F.3d 1263, 1275-76 (11th Cir. 2000), cert. denied, 531 U.S. 1053
(2000) (alteration in original). Moreover, “improper statements during argument can
be cured by clear and accurate jury instructions.” Johnson v. Alabama, 256 F.3d 1156,
1185 (11th Cir. 2001). Further:
“[a] permissible argument, no matter how ‘prejudicial’ or ‘persuasive,’
can never be unconstitutional.” Brooks v. Kemp, 762 F.2d 1383, 1403
(11th Cir.1985) (en banc), vacated on other grounds by 478 U.S. 1016,
106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated by 809 F.2d 700 (11th
Cir.1987) (en banc); Romine [v. Head], 253 F.3d at 1366 (“[N]o matter
how outcome-determinative it is a proper argument cannot render the
proceedings fundamentally unfair and therefore cannot be the basis for a
280
constitutional violation.”); Spivey v. Head, 207 F.3d 1263, 1276 (11th
Cir.2000) (“Proper arguments, regardless of their impact on the outcome
of the case, do not render a trial unfair.”). “[P]rosecutorial arguments will
not warrant habeas corpus relief unless they . . . have encouraged the jury
to take into account matters that are not legitimate sentencing
considerations.” Johnson v. Wainwright, 778 F.2d 623, 630 (11th Cir.
1985).
Reese v. Secretary, Florida Department of Corrections, 675 F.3d 1277, 1291 (11th
Cir. 2012) (first two alterations added, last alteration in original).
Jenkins divides his prosecutorial misconduct claims into two parts: comments
made by the prosecutor in his closing argument in the guilt phase of the trial, and
comments made by the prosecutor in his closing argument in the penalty phase of the
trial. When Jenkins raised these claims on direct appeal, the Alabama Court of Criminal
Appeals denied them on the merits. Jenkins v. State, 627 So. 2d at 1050-52.61 That
decision was neither contrary to nor an unreasonable application of clearly established
Federal law, nor was it based on an unreasonable determination of the facts in light of
the evidence presented. As set out below, the record establishes that the comments
were either not improper, or did not “so infect the trial with an unfairness” that Jenkins
was deprived of constitutional due process. When considered in light of the weight of
the evidence, the arguments made by defense counsel, and the trial court’s instructions
61
The Alabama Supreme Court affirmed, without specifically addressing the prosecutorial
misconduct claims. Ex parte Jenkins, 627 So. 2d 1054, 1057 (1993).
281
to the jury, the prosecutor’s comments were unlikely to have improperly influenced the
jury’s decision. See Darden, 477 U.S. at 182 (citing United States v. Young, 470 U.S.
1 (1985)).
1.
Prosecutor’s prejudicial comments in the guilt phase
Jenkins claims that, during the guilt phase of his trial, the prosecutor:
improperly commented on Mr. Jenkins failure to testify (R1 at 1551,
1553, 1608-09, 1621, 1631), misused irrelevant and prejudicial photos to
inflame the jury (R1 at 1615), repeatedly expressed personal opinions and
vouched for the quality of the prosecution’s case and witnesses (R1 at
1559, 1618-19, 1633, 1634, 1634, 1[6]35,), injected unsworn and
inflammatory testimony that was not admitted into evidence (R1 at 161819), and misstated the law on reasonable doubt (R1 at 1559, 1605, 1608,
1614), the elements of capital murder (R1 at 1550, 1609, 1613), robbery
as an aggravating circumstance (R1 at 1612, 1627), kidnapping as an
aggravating circumstance (R1 at 1555, 1610), robbery as an afterthought
(R1 at 1613), and the State’s burden of proof, (R1 at 1550, 1551-53,
1560, 1605, 1608, 1609, 1612, 1613, 1614, 1621), improperly
encouraged the jury to speculate about the existence of evidence where
the State’s proof was lacking. (R1 at 1608, 1612, 1614, 1621-22),
improperly shifted the burden to Mr. Jenkins, (R1 at 1621), and referred
to inflammatory evidence that had been excluded. (R1 at 1619.)
(Doc. 12 at 85-86) (alteration added)62.
In denying these claims on the merits, the Alabama Court of Criminal Appeals
held that:
62
Jenkins offers nothing in his petition to support this claim, except the references to pages from the
trial transcript. Therefore, the court will look to the claims raised by Jenkins on direct appeal to
determine the factual basis for the claims.
282
The appellant next contends that various comments made by the
prosecutor in his closing arguments in the guilt phase prejudiced him. The
appellant contends that the prosecutor commented on his failure to testify,
commented on evidence that was not before the jury, gave his personal
opinions, and misstated the elements of capital murder. We have reviewed
all of the complained-of instances and conclude that no reversible error
occurred. “In order for a prosecutor’s comments made during argument
before the jury to require a new trial, the entire trial must have been so
infected with unfairness as a result of these comments that the appellant
was denied due process. Darden v. Wainwright, 477 U.S. 168, 181, 106
S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986).” Hart v. State, 612 So.2d 520,
527 (Ala.Cr.App. 1992). “‘Whatever is in evidence is considered subject
to legitimate comment by counsel.’” (Citation omitted.)
Furthermore, the trial court instructed the jury that any arguments
of counsel were not to be considered as evidence in the case. “‘[A]
criminal conviction is not [to] be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements or conduct must
be viewed in context; only by so doing can it be determined whether the
prosecutor’s conduct affected the fairness of the trial.’” Dill v. State, 600
So.2d 343, 358 (Ala.Cr.App. 1991), quoting United States v. Young, 470
U.S. 1, 11, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985). Statements made
by counsel in argument to the jury are considered as having been made in
the heat of debate. Henderson v. State, 583 So.2d 276 (Ala.Cr.App.
1990), aff’d, 583 So.2d 305 (Ala. 1991), cert. denied, 503 U.S. 908, 112
S.Ct. 1268, 117 L.Ed.2d 496 (1991). “[I]t is unlikely that any [alleged]
impropriety in the State’s argument could have affected the jury’s
verdict.” Henderson, 583 So.2d at 287.
Jenkins v. State, 627 So. 2d at 1050 (second alteration added, all other alterations in
original).
a.
The prosecutor improperly commented on Jenkins’s failure to
testify, and “improperly shifted the burden” to Jenkins
When Jenkins presented this claim on direct appeal, he argued that “in order to
283
draw the jury’s attention away from its weak case,” the prosecutor “repeatedly
commented on Mr. Jenkins’ failure to testify or present evidence on his behalf, and
improperly shifted the burden of proof from the State to Mark Jenkins.” (C.R. Vol. 13,
Tab 30 at 14). Jenkins continued:
Most egregious were the prosecutor’s repeated direct and indirect
comments on Mark Jenkins’ failure to testify at trial. While arguing
whether there was sufficient evidence to find that Mark Jenkins had
committed a first degree kidnapping, the prosecutor argue[d]
I’m like Kelly [the assistant prosecutor], nobody said she
got in the car and drove off in it.63
(R. 1609) and again, in discussing whether the victim left voluntarily,
. . . [W]hat the defense will argue to some degree is that
Tammy Hogeland left voluntarily. There is no evidence to
that.64
(R. 1553) The prosecutor also used similar tactics while discussing
whether or not the victim was drunk:
If there was any evidence of intoxication on the part of the
victim, you would have heard about it this week.
(R. 1631)
63
The petitioner misquoted this statement by the prosecutor. The prosecutor actually said, “I’m like
Kelly, nobody said she got in the car voluntarily. We know she drove off in it.” (R. Vol. 9, Tab 13
at 1609).
64
The petitioner misquoted this statement by the prosecutor. The prosecutor actually said, “what the
defense will argue to some degree will be that Tammy left the Omelet Shop, and she left the Omelet
Shop voluntarily. There is no evidence to that.” (R. Vol. 8, Tab 11 at 1553).
284
What all of these arguments assume is that Mark Jenkins, who
according to the State was the last person with Tammy Hogeland, could
provide this evidence but did not. The prosecutor, in closing argument at
the guilt phase, told the jury:
You are going to have to do some speculating. Tammy Ruth
Hogeland will never tell her story because she is dead and
gone. There has to be some speculation about what
happened. There are some things that I can’t account for and
I don’t think you can as a jury.
(R. 1608-9) Because the prosecution’s theory of the case was that Mark
Jenkins was the last person with Tammy Hogeland before she died, and
the only person with her when she died, the obvious implication was that
only Mark Jenkins could provide the full story and had chosen not to do
so. See Ex parte Wilson, 571 So. 2d 1251 (Ala. 1990) (prosecutor’s
comment that the “full story” surrounding the offense had not been
disclosed reversed as impermissible comment on defendant’s silence
despite attempt at curative instruction by trial court to which there was no
objection). This implication was slammed home to the jury as the
prosecutor discussed the possibility of a conviction for a lesser included
offense, manslaughter:
And this ain’t a manslaughter case. This is no reckless
killing. There is not one iota of evidence before this jury that
this is a reckless killing, not [a] bit. The only evidence is that
Dr. Warner said she died of strangulation.
(R. 160[8]) Since Mark Jenkins was allegedly the only other person
present when Tammy Hogeland was killed and hence was the only person
who could testify to his state of mind and actions, this was clearly an
indirect yet obvious comment on his failure to testify at trial.
The prosecutor later made the same argument again, and hence
again infected the verdict with error, by arguing, “This is not a reckless
killing. This is not a killing during a sudden heat of passion. There is no
evidence of that.” Again, the only person who could provide such
285
evidence was the defendant, Mark Jenkins. Again, no curative instruction
was given by the trial court, and the prejudicial effect of this argument
was unremedied and infected the jury’s deliberations. See Windsor v.
State, supra (reversible error for the prosecutor to argue that defense
could not explain evidence of possession of weapon, since defendant was
the only person who could explain it and no curative instruction was
given); see also Ex parte Williams, 461 So. 2d 852 (Ala. 1984).
The prosecution made a similar, and similarly egregious, error
while arguing the value of the identification testimony presented by the
State:
If he [Danny Lightfoot, a potential suspect] looked
anywhere similar to Mark Allen Jenkins, they have
subpoena power, and they would have had him here for you
to look at, I’ll assure you of that, if Danny Lightfoot looked
anything like Mark Allen Jenkins, I assure you of that.65
(R. 1621). It is, of course, wholly improper for the prosecutor to “assure”
or “promise” the jury anything of an evidentiary nature; this is simply a
form of vouching for his own unsworn testimony and arguments based on
his personal experience and professional expertise (see supra, pp. __).
This argument, however, is also another example of the State’s attempt
to shift the burden of proof to the defendant, and as such wholly improper.
The defendant is under no obligation to call witnesses on his own behalf,
and any such implication by the State is reversible error. See Lowery v.
65
In context, the prosecutor stated:
[The defense] wants you to speculate that the [victim’s fiancé, Danny Lightfoot,]
might have done this. These officers testified that the finance [sic] did not meet the
physical description of the person [the victim] left that Omelet Shop with. He wasn’t
the target of this investigation. If he looked anywhere similar to Mark Allen Jenkins,
they have subpoena power, and they would have had him here for you to look at, I’ll
assure you of that, if Danny Lightfoot looked anything like Mark Allen Jenkins. I
promise you that.
(R. Vol. 9, Tab 13 at 1621) (alterations added).
286
State, 108 So. 351 (Ala.Cr.App. 1923) (improper for state to argue that
defendant did not call witnesses to substantiate his alibi).
All of these comments are inherently of a “highly prejudicial and
harmful nature.” Ex parte Williams, 461 So. 2d 852 (Ala. 1984); Ex parte
Brooks, 562 So. 2d 604 (Ala. 1990). Moreover, these arguments
impermissibly shifted the burden of proof from the State to Mr. Jenkins.
It is the State’s burden to prove beyond a reasonable doubt that Mr.
Jenkins had the particularized intent necessary to find him guilty of capital
murder; it is the State’s burden to prove beyond a reasonable doubt that
Tammy Hogeland did not get into the car voluntarily with Mark Jenkins,
and that Mark Jenkins later formed the specific intent to kidnap Tammy
Hogeland. See In re Winship, 397 U.S. 358 (1970). The State’s argument
that the defendant, who has a constitutionally protected right to remain
silent and present no case at all, has not presented evidence to prove that
he has not committed intentional murder, or that he did not kidnap or rob
the victim, does not meet this burden of proof; rather it simply serves to
focus the jury on the defendant’s failure to testify or present evidence on
his behalf, and thus render the jury’s verdict constitutionally unreliable.
The prejudicial effect of these arguments is all the greater in a case
based wholly on circumstantial evidence. The prosecutor’s arguments
suggested to the jury that Mark Jenkins had the ability and indeed the
obligation to destroy the chain of circumstances presented by the state
with his testimony. Combined with the State’s misstatements of the
applicable law, see infra pp. __ , these arguments could have led the jury
to believe that the State’s burden of proof was far less that it was,
particularly in the crucial matter of intent. Such a belief renders their
verdict constitutionally unreliable, and it must be reversed.
(C.R. Vol. 13, Tab 30 at 15-19)(first two alterations in original, other alterations
added).
The Supreme Court has held that direct comments by the prosecution on a
defendant’s silence violate the Fifth Amendment. Griffin v. California, 380 U.S. 609
287
(1965). When determining whether an impermissible comment on a defendant’s right
to remain silent has occurred, federal courts must consider the totality of the
circumstances and evaluate “whether the remark is ‘manifestly intended’ by the
prosecutor or ‘would naturally and necessarily be understood by the jury’ as a comment
on the defendant’s silence.” Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.
1987) (citing United States v. Vera, 701 F.2d 1349 (11th Cir. 1983).
In Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002), the Eleventh Circuit
described the proper manner in which to evaluate a Griffin claim:
The Fifth Amendment prohibits a prosecutor from
commenting directly or indirectly on a defendant’s failure to
testify. A prosecutor’s statement violates the defendant’s
right to remain silent if either (1) the statement was
manifestly intended to be a comment on the defendant’s
failure to testify; or (2) the statement was of such a character
that a jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify. The
question is not whether the jury possibly or even probably
would view the remark in this manner, but whether the jury
necessarily would have done so. The defendant bears the
burden of establishing the existence of one of the two
criteria. The comment must be examined in context, in order
to evaluate the prosecutor’s motive and to discern the
impact of the statement . . . .
United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (citations,
quotations, and footnotes omitted). See also United States v. LeQuire,
943 F.2d 1554, 1565 (11th Cir. 1991) (same); Solomon v. Kemp, 735
F.2d 395, 401 (11th Cir. 1984).
288
In applying Griffin, we have strictly enforced the requirement that
a defendant show that the allegedly offensive comment was either
manifestly intended to be a comment on the defendant’s silence or that the
comment naturally and necessarily related to the defendant’s silence.
Isaacs, 300 F.3d at1270 (alterations in original).
Jenkins has not shown that the prosecutor’s comments were intended to be a
comment on his silence, that the comments were of such a character that the jury would
necessarily have viewed them as comments on his silence, or that the comments
amounted to vouching or improperly shifted the burden of proof to him.
He first argues that the prosecutor referenced his failure to testify while
addressing the sufficiency of the evidence on the kidnapping charge, when he argued
that,
I’m like [the assistant prosecutor], nobody said [the victim] got in the car
voluntarily. We know she drove off in it.
(R. Vol. 9, Tab 13 at 1609) (alterations added), and when he argued that,
what the defense will argue to some degree will be that Tammy left the
Omelet Shop[pe], and she left the Omelet Shop[pe] voluntarily. There is
no evidence to that.
(R. Vol. 8, Tab 11 at 1553).
This was clearly not a comment on Jenkins’s failure to testify, but a valid argument
pointing out the lack of evidence indicating that the victim had left with Jenkins
voluntarily.
289
Jenkins also challenges the following comments by the prosecutor:
Now, I don’t know if she was alive or dead, and that doesn’t really matter
at this point in time whether she was alive or dead or unconscious. I don’t
know. But there was evidence that she was alive out there on that scene.
She might have been unconscious. I don’t know. You can infer anything
you want to from the facts. I’ll [sic] will tell you this, Mrs. Coe, I believe
said, she thought she appeared to be passed out. If there was any evidence
of intoxication on the part of the victim, you would have heard about it
this week.
(R. Vol. 9, Tab 13 at 1630-31);
You are going to have to do some speculating. Tammy Ruth Hogeland
will never tell her story, because she is dead and gone. There has to be
some speculation about what happened. There are some things in this case
that I can’t account for, and I don’t think that you can as a jury.
(R. Vol. 9, Tab 13 at 1608);
And this ain’t a manslaughter case. This is no reckless killing. There is
not one iota of evidence before this jury that this is a reckless killing, not
a bit. The only evidence is that Dr. Warner said she died of strangulation.
Now, if strangulation is recklessness, so be it. Find manslaughter. This is
not a reckless killing.
(R. Vol. 9, Tab 13 at 1608-09); and
This is not a reckless killing. This is not a killing during a sudden heat of
passion. There is no evidence of that.
(R. Vol. 9, Tab 13 at 1613-14).
Jenkins maintains that these comments necessarily referenced his failure to testify. He
reasons that since he was allegedly the only person present when the victim was killed,
290
and the last person to see her alive, he was the only person who could have testified as
to whether she was intoxicated at the time of her death or if the killing was intentional.
The comment regarding evidence of the victim’s intoxication was made in
relation to Mrs. Coe’s testimony that the victim appeared to be “passed out” when she
saw her, and to point out that there had been no evidence indicating that the victim was
intoxicated. The comments regarding the manner of the victim’s death were made in
response to defense counsel’s argument that there was no direct evidence of Jenkins’s
guilt, and were an attempt both to explain the need to rely on circumstantial evidence
and to point out the absence of any evidence indicating the victim’s death was anything
but intentional.
Jenkins also claims that these comments shifted to him the burden to prove that
the victim did not voluntarily get into the car with him and that he did not have the
specific intent to kill her. However, the comments were clearly made by the prosecutor
to point out the lack of any evidence indicating that the victim had left with Jenkins
voluntarily, and to point out the absence of evidence indicating the victim’s death was
anything but intentional. The arguments in no way shifted the burden of proof to
Jenkins. Further, the jury was clearly instructed by the court that the arguments by
counsel were not evidence and that the burden of proof was on the State. (R. Vol. 9,
Tab 14 at 1640, 1668, 1682).
291
When viewed in context, none of these statements was manifestly intended to
be a comment on Jenkins’s failure to testify, nor were the comments of such a character
that a jury would naturally and necessarily have taken them to be a comment on his
failure to testify. Rather, the comments were legitimate statements concerning the
circumstantial evidence presented at trial. Further, these comments did not shift the
burden of proof to Jenkins.
Jenkins further argues that the following comments by the prosecutor were
improper:
[The defense] wants you to speculate that the [victim’s fiancé]66 might
have done this. These officers testified that the finance [sic] did not meet
the physical description of the person [the victim] left that Omelet Shop
with. He wasn’t the target of this investigation. If he looked anywhere
similar to Mark Allen Jenkins, they have subpoena power, and they would
have had him here for you to look at, I’ll assure you of that, if Danny
Lightfoot looked anything like Mark Allen Jenkins. I promise you that.
(R. Vol. 9, Tab 13 at 1621) (alterations and footnote added). He argues that the
prosecutor “vouch[ed] for his own unsworn testimony and arguments based on his
personal experience and professional expertise” by assuring the jury of “anything of an
evidentiary nature.” (C.R. Vol. 13, Tab 30 at 17). He claims that this is another attempt
by the state to shift the burden of proof, requiring him to prove his innocence. (Id.).
Clearly, the prosecutor was not vouching for the credibility of his unsworn arguments
66
Danny Lightfoot was the victim’s fiancé.
292
or attempting to shift the burden of proof to Jenkins. Rather, the comment was a
legitimate response to defense counsel’s attempt67 to convince the jury that the victim’s
fiancé, instead of Jenkins, had killed her.
b.
The prosecutor misused irrelevant and prejudicial photos to
inflame the jury
On direct appeal, Jenkins argued that, during closing argument, the prosecutor
improperly urged the jury to consider “shocking and irrelevant pictures of the victim’s
body in an advanced state of decomposition” as evidence of Jenkins’s intent to commit
the underlying felonies of kidnapping and robbery. (C.R. Vol. 13, Tab 30 at 19).
Jenkins refers to this portion of the closing argument:
Mr. Scofield talked a lot about intent and when it’s got to be present.
Intent is an aspect of a murder, intentional type murder. But, intent, what
he failed to tell you, and what the Judge will tell you, that intent can be
inferred from the circumstances. Intent to kill. I want to tell you a little bit
about, talk about motive in this case. What motive did Mark Jenkins
have? I tell you what motive he had. Christine turned him down. He got
drunk and went over there. He was hitting on her; it’s in her statement. He
was hitting on her. Telling her he loved her, and she run [sic] him off.
That’s his motive. Christine turned him down. So, I’ll go find Tammy. I’m
low on gas. I’ll go over to the station and get in another car and go find
her. Yeah, you can speculate. You can infer anything you want to from
the evidence in this case, ladies and gentlemen of the jury. Can be
inferred, and there is no burden on the State to show when that intent was
inferred. It can be inferred from the totality of the circumstances, and
that’s what I want you to do in this case. I’ll tell you what intent and
motive is. That’s intent and motive. You look at it when you get back
67
(See R. Vol. 5 at 838, 840, 856).
293
there. I don’t even like to look at it. That’s intent and motive.
(R. Vol. 9, Tab 13 at 1614-15).
Jenkins maintained that this argument was intended to inflame the jury, since the
depiction of advanced decomposition could tell the jury nothing about intent to rob or
kidnap the victim. (C.R. Vol. 13, Tab 30 at 20).
Initially, the court notes that the argument in question seems to address intent to
kill, rather than intent to commit a robbery or kidnapping. Further, the photographs in
question were admitted into evidence by the State without objection by the defense. (R.
Vol. 4 at 705-08). Thus, they were the proper subject of argument by the prosecutor.
Finally, the court clearly instructed the jury on intent. (R. Vol 9, Tab 14 at 1650).
Accordingly, the Alabama Court of Criminal Appeals correctly determined that any
impropriety in the prosecutor’s closing argument contained no reversible error.
c.
The prosecutor repeatedly expressed personal opinions and
vouched for the quality of the prosecution’s case and witnesses
Jenkins claimed on direct appeal that “the prosecutor repeatedly put his personal
opinion of the defendant’s guilt and of the evidence in the case before the jury, as if it
were evidence for the jury to consider.” (C.R. Vol. 13, Tab 30 at 24-25). Specifically,
he challenged the following statements:
When you listen to the terminology in regard to reasonable doubt, it’s not
all that complicated. Reasonable doubt is a doubt for which you can
294
attach a sound sensible reason. Okay. It’s a doubt for which you can
attach a sound sensible reason. Not a whimsical doubt. It’s not a fanciful
doubt. If you can attach a reasonable doubt. I don’t believe you can.
There are many more items of evidence to be talked about in this case.
There is one more thing I would ask of you. There is one thing I would
ask of all of you. No one ever asked any of you to leave your common
sense at home. Common sense is something that no one gave you. It’s not
something they can take away. The judge will charge you on the law and
you will weigh the facts. And I hope that in doing and being attentive to
the facts and the law, you will use your common sense. Thank you.
(R. Vol. 8, Tab 11 at 1560-61);
You know there are a lot of coincidences if there is no evidence in this
case. A lot of coincidences. Isn’t it a coincidence that Mark Jenkins,
undisputed testimony, Mark Jenkins left Christine’s house around
approximately 2:00 o’clock and he was drunk. Isn’t it a coincidence that
that very same night a red Mazda RX-7 just happened to come up missing
from the same service station where Mr. Mark Allen Jenkins keeps his car
parked? Isn’t it a coincidence that a drunk person shows up over at the
Omelet Shop on 10th Avenue and almost runs through the curb and comes
in and starts talking to Tammy? Isn’t that a coincidence? Isn’t it a
coincidence that a few hours later this same person that is positively
identified by the Coes as being out at the Springville Chevron about three
miles from where Tammy’s body was found in a red sports car, and he is
under the influence. He smells of alcohol. Now, that’s some strange
coincidences. No, ma’am; no sir, that’s strong circumstantial evidence, as
strong as it gets, and it’s good evidence. It’s as strong as it gets.
(R. Vol. 9, Tab 13 at 1617-18); and
That’s good evidence, folks, puts this defendant right in the middle of this
crime. I could go on and on talking about this case. The evidence in this
case is overwhelming. The officers in this case worked hard, and they put
this case together just like we presented it to you. Just like Kelly said, just
like a puzzle, and the whole picture should be clear to you now. I think
probably that I have stood up here as long as I need to. I’m not going to
295
attempt to go over every witnesses’ [sic] testimony. I am going to say to
you this, that I feel like the presumption of innocence that this defendant
came before you with is gone now. That cloak has been stripped from his
back. He stands before each and everyone of you as guilty. He stands
before you guilty of capital murder just like we proved it with all of this
evidence. . . . I submit to you that you haven’t got to speculate on
anything. You can take the overwhelming evidence, direct and
circumstantial, that the Judge will tell you is good evidence in this case
and put it all together, and use your common sense, and you should have
absolutely no problem going back there and finding this defendant guilty
as charged of capital murder: Murder during the course of robbery,
murder during the course of kidnapping. Do it in the interest of justice.
Thank you.
(Id. at 1633-35).
Jenkins argued that these arguments “invoke the prosecutor’s personal
experience and professional expertise to bolster the State’s case,” and encourage the
jury to rely upon the prosecutor’s opinions concerning Jenkins’s guilt, rather than the
evidence. (C.R. Vol. 13, Tab 30 at 25-26). These comments were not improper. Rather,
they were made by the prosecutor to remind the jury about all of the state’s evidence,
and to argue that the evidence was sufficient to support a finding of guilt. See Melson
v. State, 775 So. 2d 857 at 883 (Ala. Crim. App. 1999), aff'd sub nom. Ex parte
Melson, 775 So. 2d 904 (Ala. 2000) (rejecting similar argument and holding that
prosecutor’s arguments were “merely that the state’s evidence was sufficient to
overcome” the presumption of innocence and that the trial court properly instructed the
jury on the presumption of innocence and that the comments of attorneys were not
296
evidence.)
d.
The prosecutor injected unsworn and inflammatory testimony
that was not admitted into evidence, and had been excluded
On direct appeal, Jenkins claimed that the prosecution intentionally put before
the jury unsworn testimony regarding Sarah Harris’s failure to identify Jenkins, and
exacerbated the prejudicial effects of this argument by vouching for its truth with his
professional experience and expertise as a law enforcement official. (C.R. Vol. 13, Tab
30 at 20-21). Jenkins objected to the following comment:
Sarah Harris, the black lady from the Omelet Shop that testified, sat on
that witness stand as confident as anybody I have ever seen and said
that’s the man that came in that Omelet Shop that night. And that’s the
man that Tammy left with. That’s direct evidence, that’s direct evidence.
There has been a big issue made about her failure to identify him at this
prior lineup. I believe the testimony was when she was shown the first
lineup, you will have it there, that she couldn’t be positive, but she said,
I think it’s No. two. You look and see who No. two is. Belinda told you
No. two in her lineup is the defendant. But she couldn’t be positive. I
don’t know how many people come and go. But then we get around to the
live lineup Ms. Harris did. She was unable, and we will submit that she
was unable to make an ID. But don’t you know why, ladies and
gentlemen of the jury? You can infer from the circumstances in this case
and the evidence in this case. She was probably scared. She was probably
scared. She was looking at a man over there that she knows by this time
has strangled the life out of a co-worker. And I don’t know how many
times I have heard, and I know you people have heard, and you are not
even in my field of work, how people don’t want to get involved. They
are reluctant to get involved. You might have sensed that a little bit from
some of our witnesses. We called a lot of witnesses. People are scared
about getting involved in murder cases. And that’s what happened to say
Sarah Harris. That’s the reason she didn’t point him out in that live lineup.
297
(R. Vol. 9, Tab 13 at 1618-19). Jenkins claimed that this was not an argument from the
evidence presented at trial. (C.R. Vol. 13, Tab 30 at 21). He pointed out that the jury
heard no testimony from Sarah Harris indicating that she had failed to identify Jenkins
in a lineup because she was scared, making it improper for the prosecutor present this
alleged reason as a fact.68 (Id.). He adds that the error was compounded by the
prosecutor’s vouching, based on his personal expertise and professional experience,
that he knew she could have identified Jenkins but for her fear of him. (Id. at 22).
The prosecutor’s comment does not appear to have been a statement of fact,
allegedly supported by Sarah Harris’s testimony, or improper vouching by the
prosecutor. The prosecutor admitted the fact that Ms. Harris had failed to identify
Jenkins at the first lineup. However, he stressed the fact that she had identified Jenkins
in open court as the man with whom the victim left the Omelet Shoppe on the night she
disappeared. In an effort to refute the defense argument that Jenkins was not the
perpetrator of the crimes since Ms. Harris, the only person who saw the victim leave
the Omelet Shoppe that night, was originally unable to identify him, the prosecutor
urged the jurors to use their own life experiences to conclude that she was probably
afraid to identify Jenkins in the live lineup.
68
Sarah Harris testified in a proceeding held outside of the presence of the jury, that she did not
identify Jenkins in the live lineup because she was “afraid.” (R. Vol. 3, Tab 9 at 545).
298
The prosecution did not present Ms. Harris’s fear of identifying Jenkins as a fact.
The prosecution clearly argued that “[s]he was probably scared.” (R. Vol. 9, Tab. 13
at 1619). However, to the extent the argument might have been taken as a statement of
fact that Ms. Harris was afraid, the jury was clearly instructed by the court that:
An attorney’s statements and arguments are intended to help you
understand the evidence and apply the law. However, they are not
evidence, and you should disregard any remark, statement, or argument
which is not supported by the evidence or by the law as given to you by
the Court.
(R. Vol. 9, Tab 14 at 1682).
“Jurors are presumed to follow the instructions of the trial court.” Melson v. State, 775
So. 2d at 884. This claim will be denied.
e.
The prosecutor misstated the law on reasonable doubt,
improperly encouraged the jury to speculate about the
existence of evidence where the State’s proof was lacking, and
misstated the elements of capital murder, robbery as an
aggravating circumstance, kidnapping as an aggravating
circumstance, robbery as an afterthought, and the state’s
burden of proof
On direct appeal, Jenkins claimed the prosecutor “played fast and loose with the
definition of reasonable doubt.” (C.R. Vol. 13, Tab 30 at 30). Jenkins referenced the
following statement by the prosecutor:
When you listen to the terminology in regard to reasonable doubt, it’s not
all that complicated. Reasonable doubt is a doubt for which you can
attach a sound sensible reason. Okay. It’s a doubt for which you can
299
attach a sound sensible reason. Not a whimsical doubt. It’s not a fanciful
doubt. If you can attach a reasonable doubt. I don’t believe you can.
(R. Vol. 8, Tab 11 at 1560). Jenkins claimed this mischaracterized the reasonable doubt
standard by improperly suggesting that “even if the State’s proof had not persuaded a
juror, the resulting doubt could not be regarded as ‘reasonable’ unless the juror was
able to articulate a reason for it.” (C.R. Vol. 13, Tab 30 at 30-31). He further argued
that the following comments urged the jury “to convict based not on a sifting of the
evidence and a finding of guilt from the evidence beyond a reasonable doubt, but rather
on gut instinct and sheer conjecture.” (Id. at 28)
I’m going to ask you to speculate. You are going to have to do some
speculating. Tammy Ruth Hogeland will never tell her story, because she
is dead and gone. There has to be some speculation about what happened.
There are some things in this case that I can’t account for, and I don’t
think that you can as a jury. But you are going to be able to reconcile the
evidence in this case when it’s over with. . . . But intent, what he failed
to tell you, that intent can be inferred from the circumstances. Intent to
kill. . . . Yeah, you can speculate. You can infer anything that you want
to from the evidence in this case, ladies and gentlemen of the jury. Can be
inferred, and there is no burden on the State to show when that intent was
inferred. It can be inferred from the totality of the circumstances, and
that’s what I want you to do in this case.
(R. Vol. 9, Tab 13 at 1608, 1614-15).
Examining these comments in context, it does not appear that the prosecutor was
attempting to convince the jury to convict Jenkins based upon any other standard
besides reasonable doubt, or to mislead the jury as to the correct definition of
300
reasonable doubt. Rather, the prosecutor was trying to explain to the jury that they
would have to infer facts essential to the case from the circumstantial evidence the State
had presented. Further, even if the comments were improper, the court clearly
instructed the jury on the definition of reasonable doubt (R. Vol. 9, Tab 14 at 1669),
and that the arguments made by counsel were not evidence (Id. at 1682).
Jenkins further claimed on appeal that the prosecutor “repeatedly misstated the
elements of capital murder, the legal burden of proof, and the elements necessary to
prove first degree robbery and kidnapping.” (C.R. Vol. 13, Tab 30 at 26). He claimed
that the following comments advised the jury that they could find Jenkins guilty of
capital murder, even if he did not have the specific intent to kill:
Now, if you have a robbery in the case and you find the man committed
a murder, then therefore you have capital murder. I think when you think
about that for a moment, if you have a robbery in the case and you have
a murder, you will have a capital murder.
(R. Vol. 8, Tab 11 at 1550);
This is not a reckless killing. This is not murder, and let me tell you why.
Because Tammy Hogeland was kidnapped, and she was robbed.
(R. Vol. 9, Tab 14 at 1609); and
And that’s what makes this case capital. If it had just been a murder
where somebody walked into an Omelet Shop[pe] and shot somebody, or
grabbed them around the throat and chocked [sic] the life out of them
right there and drove off, that’s murder. But it’s capital murder under our
law when you commit another felony offense during the course of a
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murder, and that’s what we have.
(R. Vol. 9, Tab 14 at 1613). Jenkins further argued that the following statement by the
prosecutor misstated the legal requirement for proving the elements of capital murder
during a kidnapping by implying that the victim was necessarily kidnapped since she
most likely intended to return to the Omelet Shoppe:
[N]obody said she got in that car voluntarily. We know she drove off in
it. The chances are pretty good, she knew Mark Allen Jenkins, that’s
undisputed, and she probably did go out there and sit down in that car.
It’s 2:00 o’clock, or approximately in the morning, probably business was
light, there wasn’t [sic] a bunch of customers, and she went out and sat
down in this new red sports car that Mr. Jenkins drove up in. She
probably did. But I submit to you, ladies and gentlemen of the jury, a
woman, and there are some of you on this jury, you don’t go off and leave
your purse with your makeup and your brush, particularly, if you are a
heavy smoker, your cigarettes behind and go off wearing your apron if
you are going to go off and stay the morning or the night with somebody.
If she left there, she intended to come back, I submit to you. And you can
use your own common sense to figure that out. And it’s kidnapping at that
point. You listen to the Judge’s charge.
(R. Vol. 9, Tab 14 at 1609-10).
These comments were not misstatements of the law of the capital offenses of
murder during a robbery and murder during a kidnapping, nor can they be interpreted,
in context, as statements of the legal principles involved in the case. Rather, the
comments clearly were an attempt to explain to the jury that, for the murder to be made
capital, it necessarily involved the aggravating circumstances of robbery and/or
302
kidnapping. Additionally, the court clearly instructed the jury on the elements of capital
murder, first degree robbery and kidnapping, and the legal burden of proof (R. Vol. 9,
Tab 14 at 1640-41, 1644-65), and that the arguments made by counsel were not
evidence. (Id. at 1682).
Jenkins has not established that the state court’s adjudication of his claims
regarding the prosecutor’s prejudicial comments during the guilt phase was contrary
to or an unreasonable application of clearly established Federal law, or that it involved
an unreasonable determination of the facts.
2.
Prosecutor’s prejudicial comments in the penalty phase
During the state’s rebuttal closing argument in the penalty phase of the trial, the
prosecutor argued the following:
MR. DAVIS: Ladies and gentlemen of the jury, this will be the last time
the lawyers are going to stand before you in this case. Again, I appreciate
the patience you have shown and the attentiveness you have shown. I do
want to remind you of one thing, and that is that back when we
questioned prospective jurors for this case, if you remember I asked each
and everyone of you about leaving sympathy out of your decision making
process in this case. I want to ask you one more time to do that. We don’t
want any sympathy. The state of Alabama is not asking for sympathy on
behalf of anyone. We don’t want you to let sympathy come into play on
what you recommend in this case. Each and everyone of you indicated
that if the evidence in this case after being presented to you so just
justified it that each one of you thought that you could return a death
penalty. I can assure you that the State of Alabama did not leave anyone
on the jury panel that said otherwise. There has been some mention here
about Mark Jenkins’ age. Well, you consider the victim’s age, too,
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Tammy Hogeland’s age. She was twenty-three years old, and she worked
for a living. That’s what she was doing the morning that she died,
working for a living. She had a paycheck in her purse that she never go
to take home to her twenty-one month old baby. She worked like Jenkins
worked. I ask you not to let that come into play, the sympathy factor
there. I will say this, and I want you to consider this, I want you to
consider what a humiliating death Tammy died on the side of that
highway that morning. You can consider that, and you can infer anything
that you want to from the evidence you heard in this case. She died a
humiliating, very humiliating death in my opinion. It was humiliating for
me to walk up out there that afternoon and see what was –
MR. SCOFIELD: I object to his personal knowledge about humiliating
what he saw. That is improper, and Mr. Davis knows it’s improper. It’s
not evidence in this case.
THE COURT: I didn’t here [sic] what he said.
MR. SCOFIELD: He said he was humiliated when he walked up on that
scene.
THE COURT: I will ask you not to consider the statement made by
counsel.
MR. DAVIS: You have a picture of what was out there at the scene. You
look at it and you ask if that was humiliating. And, yes, I will ask you to
return a death penalty in this case, because the State of Alabama knows
and feels that that’s a deterrent in these kind of cases. And I feel good
about asking you to send out deterrent messages, because the minute you
come back and recommend the death penalty, it will be all over this
County in short order, and the State, and this general area, that the juries
in St. Clair Counts [sic] are not going to tolerate people being strangled
to death and robbed in St. Clair County[,] Alabama. It will go out, and it
will be a good message, and it will deter the future Mark Allen Jenkins
that might consider doing the same thing. We don’t want vengeance at all.
Nobody ever asked for vengeance, and I hope I haven’t insinuated that in
any manner. We don’t want vengeance. And I speak to [sic] behalf of
304
everybody connected with this case. We want you to be fair to that
defendant right there. I want you to be fair. I want you to have the same
amount of mercy on him when you go back there and deliberate his fate
that he had on Tammy Hogeland the morning of the 18th out there on that
bank on the side of I-59 when he strangled the life out of her. That’s all
we ask. If you will do that, show him the same amount of mercy he
showed Tammy, you will return a death penalty recommendation in this
case. Thank you.
(R. Vol. 9, Tab 22 at 1733-37) (alteration added).
Jenkins claims that in this statement, the prosecutor:
improperly argued for the existence of non-statutory aggravating
circumstances (R1 at 1734, 1735), improperly encouraged the jury to
reject mercy (R1 at 1734, 1736-37), improperly encouraged the jury to
vote for death to deter others (R1 at 1735-36), and, improperly compared
the victim’s rights to Mr. Jenkins (R1 at 1737.).
(Doc. 12 at 86).69 In holding that these arguments by the prosecutor were not improper,
the Alabama Court of Criminal Appeals first noted that:
The appellant next argues that several instances of prosecutorial
misconduct in the closing argument in the penalty phase resulted in
prejudice to him. In each instance cited by the appellant, no objection was
made. “‘This court has concluded that the failure to object to improper
prosecutorial arguments . . . should be weighed as part of our evaluation
of the claim on the merits because of its suggestion that the defense did
not consider the comments in question to be particularly harmful.’”
Kuenzel, 577 So.2d at 489.
Jenkins v. State, 627 So. 2d at 1050-51. That court went on to address the merits of
69
Jenkins offers nothing in his petition to support this claim except the references to pages from the
trial transcript.
305
Jenkins’ individual claims, which are set out below.
a.
The prosecutor improperly argued for the existence of nonstatutory aggravating circumstances
When Jenkins raised this claim on direct appeal, he argued that the prosecutor
improperly urged the jury to consider the victim’s “humiliating death,” as evidenced
by the photographs of the victim’s body, taken at the scene. (C.R. Vol. 13, Tab 30 at
57-49). He claimed that this “was all the more improper because the State specifically
chose not to rely on the aggravating factor that the offense was especially heinous,
atrocious, or cruel . . . and no evidence of this was or could have been presented at
either the guilt or penalty phase.” (Id. at 57-58). In denying this claim, the Alabama
Court of Criminal Appeals found:
The first instance was when the prosecutor stated that the victim
had died a “humiliating” death. “[A prosecutor] may argue every matter
of legitimate inference and may examine, collate, sift, and treat the
evidence in his own way.” Donahoo v. State, 505 So.2d 1067, 1072
(Ala.Cr.App.1986).
Jenkins v. State, 627 So. 2d at 1051.
Clearly, the prosecutor’s comment, urging the jury to “consider what a
humiliating death Tammy died on the side of that highway that morning” (R. Vol. 9,
Tab 22 at 1735), was not intended to prove, as an additional aggravating factor, that
the offense was especially heinous, atrocious, or cruel. As the Alabama Court of
306
Criminal Appeals correctly noted, a prosecutor “may argue every matter of legitimate
inference and may examine, collate, sift, and treat the evidence in his own way.”
Jenkins, 627 So. 2d at 1051 (quoting Donahoo v. State, 505 So.2d 1067, 1072 (Ala.
Crim. App.1986)). This was a proper argument based on a legitimate inference from
the evidence presented at trial. It did not constitute an improper argument of
nonstatutory aggravating circumstances. The state court’s determination that the
prosecutor’s argument was not improper was neither contrary to nor an unreasonable
application of clearly established Federal law, nor was it based upon an unreasonable
determination of the facts in light of the evidence.
b.
The prosecutor improperly encouraged the jury to reject
mercy and improperly compared the victim’s rights to Mr.
Jenkins’s
When he raised this claim on direct appeal, Jenkins argued that the prosecutor
improperly urged the jury not to let sympathy come into play in determining the
sentence, and to show Jenkins the same amount of mercy he had on the victim when
he strangled the life out of her. (C.R. Vol. 13, Tab 30 at 60-62). In holding this
argument was not improper, the Alabama Court of Criminal Appeals held:
The appellant also argues that the following comment incorrectly
urged the jury not to use sympathy in their decision making:
We don’t want vengeance at all. Nobody ever asked for
vengeance, and I hope I haven’t insinuated that in any
307
manner. We don’t want vengeance. And I speak on behalf
of everybody connected with this case. We want you to be
fair to that defendant right there. I want you to be fair. I
want you to have the same amount of mercy on him when
you go back there and deliberate his fate that he had on
Tammy Hogeland the morning of the 18th out there on that
bank on the side of I–59 when he strangled the life out of
her. That’s all we ask. If you will do that, show him the
same amount of mercy he showed Tammy, you will return
a death penalty recommendation in this case.
This court addressed a similar argument in Kuenzel [v. State, 577
So. 2d 474, 498 (Ala. Crim. App. 1990), aff'd sub nom. Ex parte
Kuenzel, 577 So. 2d 531 (Ala. 1991)], supra. Judge Bowen stated:
[I]n California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93
L.Ed.2d 934 (1987), the Supreme Court decided that “an
instruction informing jurors that they ‘must not be swayed
by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling’ during the penal
phase of a capital murder trial [does not violate] the Eighth
and Fourteenth Amendments to the United States
Constitution.” 479 U.S. at 539, 107 S.Ct. at 838.
Kuenzel, 577 So.2d at 496, (emphasis added in Kuenzel). See also Saffle
v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).
On the basis of these decisions, we find no plain error in the
prosecutor’s comments against mercy and sympathy. “In
order to obtain relief [from an alleged misstatement of the
law by a prosecutor], . . . petitioner must show that: (1) the
prosecutor in fact misstated the law; and (2) the
misstatement rendered the trial fundamentally unfair.”
Kuenzel, 577 So.2d at 498 (quoting Harich v. Wainwright, 813 F.2d
1082, 1091 (11th Cir. 1987), aff’d on rehearing, 844 F.2d 1464, 1468–69
(11th Cir. 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1355, 103
308
L.Ed.2d 822 (1989). The prosecutor’s comments were not incorrect
statements of the law. No error occurred here.
Jenkins v. State, 627 So. 2d at 1051 (alterations in original).
Citing to Drake v. Kemp, 762 F.2d 1449, 1460 (11th Cir. 1985) and Wilson v.
Kemp, 777 F.2d 621, 626 (11th Cir. 1985), Jenkins maintained before the Rule 32
Court that the Eleventh Circuit has explicitly found that a prosecutor may not argue that
sympathy or mercy are not appropriate factors to consider in sentencing. (Rule 32 C.R.
Vol. 13, Tab 30 at 61-62). He contends that the prosecutor’s closing argument in the
sentencing phase of his trial accordingly was improper.
Jenkins is correct that a jury may show sympathy and mercy in determining the
sentence. Here, however, the prosecutor did not suggest that sympathy and mercy were
inappropriate factors to consider. Rather, the prosecutor acknowledged the
circumstances of the victim’s death, then appropriately urged the jurors not to let
sympathy come into play in their decision, but to be fair, and to show Jenkins the same
amount of mercy he showed his victim. As the Eleventh Circuit Court of Appeals held
in a similar case, the prosecutor’s remarks “presupposed that the jury would consider
showing [the petitioner] mercy, but the prosecutor legitimately argued that [he] did not
deserve mercy.” Reese v. Secretary, Florida Department of Corrections, 675 F.3d
309
1277, 1293 (11th Cir. 2012)(alterations added)70. The state court’s determination that
the prosecutor’s argument was not improper was neither contrary to nor an
unreasonable application of clearly established Federal law, nor was it based upon an
unreasonable determination of the facts in light of the evidence.
c.
The prosecutor improperly encouraged the jury to vote for
death to deter others
When he raised this claim on direct appeal, Jenkins argued that the prosecutor
improperly urged the jury to return a death sentence, not based upon the characteristics
of the crime or the aggravating circumstances, but based upon the idea that “future
Mark Jenkins[es]” would “get the message” that juries in St. Clair County will not
tolerate such crimes and thus be deterred from committing such crimes. (C.R. Vol. 13,
Tab 30 at 62). He added that this “sort of argument” encourages the jury to base its
decision on matters completely extraneous to the defendant and the crime. (Id. at 6263).
In holding that the prosecutor’s argument was not improper, the Alabama Court
70
In Reese, the challenged comment was:
“I ask you not to be swayed by pity or sympathy for the defendant. What pity or
sympathy did he show to Charlene Austin?” The prosecutor continued, “[I]f you are
to . . . show pity or mercy or sympathy to this defendant, I ask you to do this: I ask
you to show that defendant the same sympathy, the same mercy, the same pity that
he showed to Charlene Austin, and that was none.”
Reese, 675 F.3d at 1284 (alterations in original).
310
of Criminal Appeals held:
The appellant further argues that the following comment was
prejudicial:
[Y]es, I will ask you to return a death penalty in this case,
because the State of Alabama knows and feels that that’s a
deterrent in these kind of cases. And I feel good about
asking you to send out deterrent messages, because the
minute you come back and recommend the death penalty, it
will be all over this County in short order, and the State, and
this general area, that the juries in St. Clair County are not
going to tolerate people being strangled to death and robbed
in St. Clair County, Alabama. It will go out, and it will be a
good message, and it will deter the future Mark Allen
Jenkinses that might consider doing the same thing.
This court stated in Rutledge v. State, 523 So.2d 1087
(Ala.Cr.App.1987), rev’d on other grounds, 523 So.2d 1118 (Ala.1988):
It is proper to argue deterrence in a sentencing phase closing
argument. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976); Brooks v. Kemp, 762 F.2d 1383
(11th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct.
3337, 92 L.Ed.2d 742 (1986); Ex parte Waldrop, 459 So.2d
959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct.
2050, 85 L.Ed.2d 323 (1985); Varner v. State, 418 So.2d
961 (Ala.Cr.App.1982); Cook v. State, 369 So.2d 1243
(Ala.Cr.App.1977), aff’d in part, rev’d in part on other
grounds, 369 So.2d 1251 (Ala.1978). It is appropriate for a
jury, in deciding whether to impose the death penalty, to
consider whether or not the general deterrence purpose of
the statute would be served thereby. Brooks v. Kemp.
523 So.2d at 1100.
The comment made by the prosecutor in his closing argument in the
311
sentencing phase was not error.
Jenkins v. State, 627 So. 2d at 1051-52.
The Eleventh Circuit also has held that deterrence is a proper subject of
prosecutorial arguments. Brooks v. Kemp, 762 F.2d 1383, 1407 (11th Cir. 1985)(en
banc), vacated on other grounds, Kemp v. Brooks, 478 U.S. 1016 (1986), reinstated
on remand, Brooks v. Kemp, 809 F.2d 700 (11th Cir. 1987). Thus, the state court’s
determination that the prosecutor’s argument was not improper was neither contrary
to, nor an unreasonable application of, clearly established Federal law, nor was it based
upon an unreasonable determination of the facts in light of the evidence.
G.
The Evidence of Capital Murder Was Insufficient To Convict Mr. Jenkins
beyond a Reasonable Doubt
Jenkins claims that, although he was convicted of both intentional murder during
the course of a kidnapping and intentional murder during the course of a robbery, the
evidence was such that no rational trier of fact could have found him guilty beyond a
reasonable doubt of either kidnapping or robbery. (Doc. 12 at 87-90). Specifically, he
claims that the evidence was insufficient to find him guilty of kidnapping, because there
was no evidence of a struggle, or that Jenkins had a premeditated plan to abduct the
victim that night, and that there was no evidence of sexual or physical abuse of the
victim, other than the murder itself. (Id. at 88-89). He claims that the evidence was
312
similarly insufficient to find him guilty of robbery, because there was no evidence that
Jenkins took the victim’s jewelry, that he ever had possession of her jewelry, or that
he ever told anyone he took the jewelry. (Id. at 89-90).
When Jenkins raised this claim on direct appeal, the Alabama Court of Criminal
Appeals denied it on the merits:
In evaluating the sufficiency of the evidence to convict the
appellant, we view the evidence in “the light most favorable to the state,”
as the jury may have interpreted it. McMillian v. State, 594 So.2d 1253,
1263 (Ala.Cr.App.1991). Some of the evidence against the appellant was
circumstantial. However, circumstantial evidence is not deficient
evidence; it “is entitled to the same weight as direct evidence provided it
points to the guilt of the accused.” Hinton v. State, 548 So.2d 547, 558
(Ala.Cr.App.1988), aff’d, 548 So.2d 562 (Ala.), cert. denied, 493 U.S.
969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).
A defendant’s guilt may be established by
circumstantial evidence as well as by direct evidence. As
long as the circumstantial evidence points to the guilt of the
accused, it will support a conviction as strongly as direct
evidence. In reviewing a conviction based on circumstantial
evidence, “[t]he test to be applied is whether the jury might
reasonably find that the evidence excluded every reasonable
hypotheses except that of guilt; not whether such evidence
excludes every reasonable hypothesis but guilt, but whether
a jury might reasonably so conclude.”
McMillian, 594 So.2d at 1263 (citations omitted). See also Potts v. State,
426 So.2d 886 (Ala.Cr.App.1982), aff’d, 426 So.2d 896 (Ala.1983). This
statement of the law refers to cases in which the evidence is entirely
circumstantial.
“The rule is clearly established in this State that a
313
verdict of conviction should not be set aside on the ground
of the insufficiency of the evidence to sustain the verdict,
unless, after allowing all reasonable presumptions of its
correctness, the preponderance of the evidence against the
verdict is so decided as to clearly convince the court that it
was wrong and unjust.”
White v. State, 546 So.2d 1014, 1022–23 (Ala.Cr.App.1989), quoting
Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969).
The appellant maintains that there was insufficient evidence to find
him guilty of robbery. “[T]he present Alabama robbery statutes71 are
71
Alabama Code § 13A-8-41, (1975) provides:
(a) A person commits the crime of robbery in the first degree if he violates Section
13A-8-43 and he:
(1) Is armed with a deadly weapon or dangerous instrument; or
(2) Causes serious physical injury to another.
(b) Possession then and there of an article used or fashioned in a manner to lead any
person who is present reasonably to believe it to be a deadly weapon or dangerous
instrument, or any verbal or other representation by the defendant that he is then and
there so armed, is prima facie evidence under subsection (a) of this section that he was
so armed.
(c) Robbery in the first degree is a Class A felony.
Ala. Code § 13A-8-43 (1975) provides:
(a) A person commits the crime of robbery in the third degree if in the course of
committing a theft he:
(1) Uses force against the person of the owner or any person present
with intent to overcome his physical resistance or physical power of
resistance; or
(2) Threatens the imminent use of force against the person of the
owner or any person present with intent to compel acquiescence to the
314
broader than common-law robbery and embrace acts which, under former
law, would have amounted to attempted robbery or to assault with intent
to rob.” Luke v. State, 444 So.2d 393, 395 (Ala.Cr.App.1983), aff’d, 444
So.2d 400 (Ala.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80
L.Ed.2d 846 (1984). Alabama’s current capital offense statute related to
robbery states that the murder must occur during the course of a robbery
or an attempted robbery. Section 13A–5–40(a)(2), Code of Alabama 1975
(emphasis added); Pierce v. State, 576 So.2d 236, 247
(Ala.Cr.App.1990), cert. denied, 576 So.2d 258 (Ala.1991). In this case,
there was testimony that the victim habitually wore several items of
jewelry. When the body was found, the only item of jewelry recovered
was a watch. These facts give rise to an inference that the other items of
jewelry were taken by the murderer. There was also the direct evidence
that the appellant admitted that “he did the crime.” “Taking all the
evidence and the manner in which the individual facts connect and mingle,
and viewing it in the light most favorable to the prosecution, we find that
the evidence excluded every reasonable hypothesis or explanation but that
of guilt.” Jones v. State, 450 So.2d 165 (Ala.Cr.App.1983), aff’d, 450
So.2d 171 (Ala.), cert. denied, 469 U.S. 873, 105 S.Ct. 232, 83 L.Ed.2d
160 (1984) (citation omitted).
The appellant also argues that there was insufficient evidence to
find him guilty of kidnapping. “A person commits the crime of kidnapping
in the first degree if he abducts another person with intent to . . . [i]nflict
physical injury upon him, or to violate or abuse him sexually.” Section
13A–6–43(a)(4), Code of Alabama 1975. The appellant maintains that
there was no evidence that the victim was abducted. He contends that the
same evidence could be viewed as showing that she voluntarily left the
restaurant with the appellant. The great weight of the evidence, however,
points to the opposite hypothesis.
“Abduct” is defined in § 13A–6–40(2) as “to restrain a person with
intent to prevent his liberation by either: a. Secreting or holding him in a
taking of or escaping with the property.
(b) Robbery in the third degree is a Class C felony.
315
place where he is not likely to be found, or b. Using or threatening to use
deadly physical force.” To reiterate, the state’s evidence tended to show
that the victim was the only cook on duty at the Omelet Shoppe when the
appellant came into the restaurant on the night of the victim’s
disappearance. She was wearing her apron and her work uniform. She left
without taking her purse or her cigarettes, even though she was a heavy
smoker. The victim was paid that evening and did not take her paycheck.
She told no one where she was going. Her clothing and the articles she
left behind tend to show that she did not leave voluntarily. Her body was
found in a remote area on the side of I–59. “A reasonable juror may well
have believed that she would not have voluntarily accompanied [the
appellant] to such an area.” Neal v. State, 451 So.2d 743, 758
(Miss.1984), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716
(1984), post-conviction relief granted in part on other grounds, 525
So.2d 1279 (Miss.1987). Furthermore, the position of the clothing around
the victim’s head and the fact that she was manually strangled tend to
show that she was restrained prior to her death. “The physical condition
of the body . . . the conduct and admission of the appellant were sufficient
to establish . . . the underlying felony of kidnapping.” Mines v. State, 390
So.2d 332, 335 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994,
68 L.Ed.2d 308 (1981). See also State v. James, 459 So.2d 1299
(La.App.1984), writ denied, 463 So.2d 600 (La.1985). Moreover, even
if the victim initially left the restaurant with the appellant voluntarily, the
offense of kidnapping is not mitigated. Adams v. State, 412 So.2d 850,
852 (Fla.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d
148 (1982).
A reasonable juror could conclude that the appellant’s guilt was
established beyond a “reasonable doubt.” The evidence overwhelmingly
pointed to the guilt of the appellant. The case was correctly submitted to
the jury for its determination and there is no reason to disturb its verdict.
Jenkins v. State, 627 So. 2d at 1040-41 (alterations in original).72 Jenkins claims that
72
The Alabama Supreme Court affirmed, without specifically addressing the sufficiency of the
evidence claim. Ex parte Jenkins, 627 So. 2d 1054, 1057 (1993).
316
because no rational trier of fact could have found him guilty beyond a reasonable doubt
based upon the evidence, the state court’s adjudication of this claim resulted in a
decision that was contrary to and involved an unreasonable application of clearly
established Federal law, and that it was based on an unreasonable determination of the
facts.
Due process requires the state to prove each element of a criminal offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979). The
evidence is sufficient to support a conviction if, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
There are two layers of judicial deference in federal habeas proceedings.
Coleman, 566 U.S. at 2062.
First, on direct appeal, “it is the responsibility of the jury—not the
court—to decide what conclusions should be drawn from evidence
admitted at trial. A reviewing court may set aside the jury’s verdict on the
ground of insufficient evidence only if no rational trier of fact could have
agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, – , 132 S.Ct. 2, 4,
181 L.Ed.2d 311 (2011) (per curiam). And second, on habeas review, “a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only
if the state court decision was ‘objectively unreasonable.’” Ibid. (quoting
Renico v. Lett, 559 U.S. 766 – , 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678
(2010)).
317
Id. “The only question for the reviewing state court under Jackson is ‘whether the
finding was so insupportable as to fall below the threshold of bare rationality.’” Jones
v. Secretary Dept. of Corrections, 503 Fed. Appx. 749, 751 (11th Cir. 2013) (quoting
Coleman, 132 S.Ct. at 2065). The state court’s determination is, in turn, entitled to
considerable deference under the AEDPA. Coleman, 132 S. Ct. at 2065.
Based upon the facts presented, the jury reasonably could have concluded that
Jenkins intended to kidnap and rob the victim. Viewing the evidence in the light most
favorable to the state, a rational trier of fact could have found the essential elements of
kidnapping and robbery beyond a reasonable doubt. Thus, the denial of this claim by
the state court was neither contrary to nor an unreasonable application of clearly
established Federal law, nor was it based on an unreasonable determination of the facts
in light of the evidence presented.
H.
The Trial Court’s Sentencing Errors
Jenkins claims that his “right to due process, a fair trial and to a reliable
punishment determination, pursuant to the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution were violated by the trial court’s failure
to consider and give weight to several undisputed mitigating factors.” (Doc. 12 at 90).
Specifically, he contends that the trial court failed to consider “undisputed evidence”
that he was severely intoxicated at the time of the crime; that he was trustworthy, non318
violent, and kind to his friend Lonnie Seal, and had helped Seal support his family; and
the information contained in the state’s presentence investigation report indicating
Jenkins had a bleak and abusive childhood, lacked education, was addicted to drugs,
and lacked a significant history or prior criminal activity. (Id. at 90-92). When Jenkins
raised this claim on direct appeal, the Alabama Court of Criminal Appeals denied it on
the merits:
The appellant also argues that the trial court erred in finding that
several mitigating circumstances were not present. He maintains that the
court should have found as statutory mitigating circumstances that . . . the
appellant lacked the capacity to appreciate the criminality of his conduct
(§ 13A–5–51(6)).
....
The trial court . . . determined that §-13A-5-51(6) did not apply,
given the facts of the case. The trial court stated in its order that:
The Court does find that there was evidence that the
defendant, at some time during the night of April 17th or
morning of April 18th had consumed alcoholic beverage
[sic], but the Court does not find that at the time of the
commission of the capital offense the capacity of the
defendant to appreciate the criminality of this conduct or to
conform his conduct to the requirements of law was
substantially impaired. The Defendant's conduct, at
approximately 5:00 a.m. on the 18th at the service station,
and his conversation with the two Coe witnesses and his
later recollection of the events that occurred surrounding the
commission of the offense, would indicate that the
defendant's capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of
319
law was not substantially impaired to the extent as required
in this mitigating circumstance.
“[V]oluntary intoxication will not constitute grounds for the
mitigating circumstance in this case. The appellant simply did not show
that he was so intoxicated as to have rendered himself incapable of
appreciating his conduct.” Thompson v. State, 503 So.2d 871, 881
(Ala.Cr.App.1986), aff'd, 503 So.2d 887 (Ala.1987), cert. denied, 484
U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987). See also Ex parte
Jones, 520 So.2d 553 (Ala.1988), cert. denied, 488 U.S. 871, 109 S.Ct.
182, 102 L.Ed.2d 151 (1988); Colquitt, Death Penalty Laws of Alabama,
33 Ala.L.Rev. 213 (1982). The trial court's findings in this regard are
supported by the record and are correct.
The appellant also contends that the trial court erred in failing to
find any nonstatutory mitigating factors. The trial court's findings show
that the court considered all of the evidence that the appellant presented
as possible nonstatutory mitigating evidence and found no nonstatutory
mitigating circumstances.
“It is not required that the evidence submitted by the
accused as a non-statutory mitigating circumstance be
weighed as a mitigating circumstance by the sentencer, in
this case, the trial court; although consideration of all
mitigating circumstances is required, the decision of whether
a particular mitigating circumstance is proven and the weight
to be given it rests with the sentencer.”
McWilliams v. State, [Ms. 6 Div. 190, Aug. 23, 1991], 1991 WL 184448,
*3 (Ala.Cr.App.1991) (citation omitted). We have reviewed the evidence
presented at the sentencing hearing and believe that the trial court
committed no error in finding no nonstatutory mitigating circumstances in
the present case.
Jenkins, 627 So. 2d at 1052-53. The Alabama Supreme Court affirmed the appellate
court’s findings without specifically addressing them. Ex parte Jenkins, 627 So. 2d at
320
1057. Jenkins contends that the “state court adjudication of this claim resulted in a
decision that was contrary to and involved an unreasonable application of clearly
established United States Federal law,” and that it was “also based on an unreasonable
determination of the facts.” (Doc. 12 at 92).
“The Eighth and Fourteenth Amendments require that the sentencer in a capital
case consider any evidence which mitigates against the imposition of the death
penalty.” Glock v. Moore, 195 F.3d 625, 637 n.20 (11th Cir. 1999)(citing Lockett v.
Ohio, 438 U.S. 586, 608 (1978)). See also Eddings v. Oklahoma, 455 U.S. 104, 11314 (1982) (“Just as the State may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer refuse to consider, as a
matter of law, any relevant mitigating evidence.”).
The operative word, however, is “consider.” The Supreme Court
has made clear that the sentencer need not accept or ascribe any specific
weight to the evidence that it considers. “Acceptance of nonstatutory
mitigating factors is not constitutionally required; the Constitution only
requires that the sentencer consider the factors.” Atkins v. Singletary, 965
F.2d 952, 962 (11th Cir.1992) (citing Blystone v. Pennsylvania, 494 U.S.
299, 308, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990)); accord Harris v.
Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995)
(“[T]he Constitution does not require a State to ascribe any specific
weight to particular factors, either in aggravation or mitigation, to be
considered by the sentencer.”). As the Supreme Court later stated in
Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290
(1993), “ Lockett and its progeny stand only for the proposition that a
State may not cut off in an absolute manner the presentation of mitigating
evidence,” Id. at 361, 113 S.Ct. 2658.
321
Morris v. Secretary, Dept. of Corrections, 677 F.3d 1117, 1131 (11th Cir. 2012).
“[A] federal habeas corpus court may review a state court factual finding
concerning the existence of mitigating circumstances.” Magwood v. Smith, 791 F.2d
1438, 1449 (11th Cir. 1986). “[O]nce we see that a full hearing has been held in which
defense counsel is given a fair opportunity to present mitigating evidence, our review
becomes highly deferential.” Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir.
1992)(citing Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984)). A trial
court’s findings on mitigating factors are presumed to be correct and will be upheld if
they are supported by the record. Id. (citing Magwood, 791 F.2d at 1450; 28 U.S.C. §
2254(d)).
Jenkins was not prevented from presenting, as potential mitigating evidence, that
he was intoxicated on the night of the murder; that his friend Lonnie Seal found him
trustworthy, non-violent, helpful and kind; and that he had a bleak, abusive childhood,
lacked education, battled drug addiction, and lacked a significant prior criminal history.
In its sentencing order, the trial court stated that it had considered “all mitigating
circumstances as set out in Title 13A-5-51 of the 1975 Code of Alabama, together with
other mitigating circumstances not set out in the above Code Section.” (C.R. Vol. 45,
Tab 73 at 16). The court went on to state:
This Court has further considered the pre-sentence report going into
322
the background of the Defendant prior to the commission of the offense73
and also all of the mitigating circumstances as set out in the Defendant’s
Attorney’s pre-sentence memorandum74 and all of the mitigating
circumstances enumerated in Title 13A-5-51 of the Code of Alabama.
(C.R. Vol. 45, Tab 73 at 18). The Alabama Court of Criminal Appeals made factual
findings that the trial court had considered each of the potential mitigating factors put
forth by Jenkins. Jenkins, 627 So. 2d at 1052-53.
To be entitled to relief on this claim, Jenkins must provide clear and convincing
evidence to rebut the Alabama Court of Criminal Appeals’ findings that the trial court’s
findings that Jenkins was not so intoxicated as to have rendered himself incapable of
appreciating his conduct are supported by the record and are correct, that the trial court
considered all of the evidence Jenkins presented as possible nonstatutory mitigating
evidence, and that the “trial court committed no error in finding no nonstatutory
mitigating circumstances in the present case.” Id. Jenkins has not met this burden.
When a trial court considers mitigating evidence presented during sentencing, as the
73
The presentence report outlined Jenkins’s personal and social history. (See Doc. 56-2 at 24-31).
74
In the pre-sentence memorandum, Jenkins set out the bleak history of his childhood and argued
as mitigating circumstances that he had no significant history of prior criminal activity; the victim was
a participant in Jenkins’s conduct or consented to it; his capacity to appreciate the criminality of his
conduct or conform his conduct to the requirements of the law was substantially impaired by his
extreme intoxication; and he was twenty-one years old at the time of the crime. He also asked that
lack of premeditation; the fact that the offense was not especially heinous, atrocious, or cruel when
compared with other capital offenses; lack of use of a dangerous weapon; and Jenkins’s background
and lack of education be considered as mitigating circumstances. (Doc. 56-2 at 11-22).
323
trial court did in Jenkins’s case, there is no constitutional error. Thus, the Alabama
Court of Criminal Appeals’ decision denying relief on this claim was not contrary to
or an unreasonable application of Federal law, or based on an unreasonable
determination of the facts.
I.
Mr. Jenkins Was Deprived of a Fair Trial by the State’s Racially
Discriminatory Use of Peremptory Challenges
Jenkins claims that, during jury selection at his trial, the prosecutor “exercised
peremptory challenges to remove all three of the qualified African-American members
of the venire, and two-thirds of his peremptory challenges (14 of 21) to remove
women.” (Doc. 12 at 92).75 He alleges that although the state’s “pattern of strikes,
manner or voir dire, disparate treatment of suspect groups and the disparate impact
demonstrated a patter[n] of discrimination, no justification was ever offered for this
wholly disproportionate pattern of strikes.” (Id.).76 Jenkins then leaps to the conclusion
that the state “clearly used its peremptory strikes in a discriminatory and biased
manner,” which proves a prima facie case of discriminatory use of peremptory
challenges that “was not and cannot be rebutted.” (Id. at 93). He asserts that he was
75
He adds that the prosecution “used seventeen (17) of its twenty-one (21) peremptory challenges,
or 81% of its strikes, to remove people from protected classes.” (Id.).
76
Defense counsel made no objection to the state’s strikes during the jury selection process. (R. Vol.
3 at 445-50).
324
prejudiced by “the racially discriminatory selection of jurors” at his trial and the state’s
failure “to rebut the inference of racial bias.” (Id.).
On direct appeal, Jenkins raised the following claim:
Prior to trial, defendant Mark Allen Jenkins filed a Motion to
Enjoin the Prosecution from utilizing its peremptory challenges to
systematically exclude minorities from the jury panel. (Cr. 88) As grounds
for said motion, defendant alleged that he was part Mexican blood and
was charged with killing a white person. The motion also moved that the
prosecutors use of peremptory challenges to systematically exclude
minorities violated the defendant’s Sixth and Fourteenth Amendment
rights to trial by jury composed of a fair cross-section of the community
and his Fourteenth Amendment rights to due process and equal protection
of the law, as well as his right to trial by an impartial jury.77 Prior to trial,
defendant’s motion, as stated, was denied.
77
The motion read as follows:
Defendant, Mark Allen Jenkins, by the undersigned counsel, moves this Court
for an order enjoining the prosecutor from using his peremptory challenges to
systematically exclude minorities from the jury panel which will try the defendant.
As grounds therefore, defen[d]ant states the following:
1. The defen[d]ant is part Mexican-blood, and is charged with killing a white
person.
2. The prosecutor’s use of peremptory challenges to systematically exclude
minorities violates the defendant’s Sixth and Fourteenth Amendment rights to trial by
a jury composed of a fair cross-section of the community and his Fourteenth
Amendment rights to due process and equal protection of the law, as well as his right
to trial by an impartial jury. People v. Kagen, 420 N.Y.S. 2d 987 (Sup. Ct. N.Y. Co.
1979); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979); People v. Wheeler,
22 Cal. 3d 258, 583 P.2d [748] (1978).
(C.R. Vol. 10, Tab 27 at 88) (alterations added).
325
In Powers v. Ohio, No. 89-5011, 499 U.S. __ (1991), 111 S.Ct. __,
113 L. Ed. 2d 411 (1991), the United States Supreme Court held that the
Fourteenth Amendment which barred state prosecutors from using
peremptory challenges against minorities in a racially biased manner
could be utilized by defendants who are white or not members of the
group of excluded venire persons. In this regard, the Court stated:
We conclude that a defendant in a criminal case can
raise the third-party equal protection claims of jurors
excluded by the prosecution because of their race. In so
doing, we once again decline “to reverse a course of
decisions of long standing directed against racial
discrimination in the administration of justice.” Cassell v.
Texas, supra, 339 U.S., at 290, 70 S.Ct., at 633
(Frankfurter, J., concurring in judgment). To bar petitioner’s
claim because his race differs from that of the excluded
jurors would be to condone the arbitrary exclusion of
citizens from the duty, honor, and privilege of jury service.
In Holland and Batson, we spoke of the significant role
peremptory challenges play in our trial procedures, but we
noted also that the utility of the peremptory challenge
system must be accommodated to the command of racial
neutrality. Holland, 493 U.S., at 486-487, 110 S.Ct., at
810-811; Batson, supra, 476 U.S., at 98-99, 106 S.Ct., at
1723-1724.
113 L. Ed. 2d at 428.
The Court continued that the courts are under an affirmative duty
to enforce the strong statutory and constitutional policies embodied in that
prohibition. Id. at 15.
In fairness to the trial court, the Powers decision was rendered after
defendant’s trial. The Supreme Court did not address the retroactivity of
Powers in its opinion, but it is certain that under Griffith v. Kentucky, 479
U.S. 314, 93 L. Ed. 2d 649 (1987), the Powers’ decision should be
retroactively applicable to cases that have not yet had certiorari denied on
326
original appeal in the United States Supreme Court.
It is clear that the court’s denial of the motion to enjoin the
systematic exclusion of minorities was a breach of the court’s affirmative
duty to enforce the strong and statutory constitutional policies embodied
in the Batson decision. On the authority of Powers, defendant asks that
this Honorable Court reverse and remand his conviction for a new trial or,
in the alternative, to remand for further proceedings consistent with
Powers.
(R. Vol. 12, Tab 28 at 70-72) (footnote added).
The Alabama Court of Criminal Appeals denied this claim on the merits:
The appellant next argues that the state prosecutor exercised his
peremptory strikes to eliminate jurors from the jury solely on the basis of
race, thereby violating the United States Supreme Court holding in Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The
appellant in this case is white. The ruling of Batson was extended, after
the appellant was tried, to permit white defendants standing to complain
of the purposeful exclusion of blacks from their jury. Powers v. Ohio, 499
U.S. 400, 111 S.Ct 1364, 113 L.Ed.2d 411 (1987).
Defense counsel in a pre-trial motion, which was filed prior to any
jury selection, filed a motion entitled “Defendant’s Motion to Enjoin the
Prosecutor from Utilizing his Peremptory Challenges to Systematically
Exclude Minorities from the Jury Panel.” When the motion was filed, the
court stated that it would consider the motion when it was made at the
appropriate time after a jury had been struck. This is the last time in the
record the motion was mentioned by anyone. The appellant did file a
motion for new trial in which he alleged as one of the grounds that the
trial court erred in denying his motion to enjoin the prosecutor. Because
no objection was made to the composition of the jury after the jury was
selected and before they were sworn, and because this is a case involving
the death penalty, we must determine whether the alleged error is “plain
error.”
327
There is no evidence in the record that the prosecutor used his
strikes in a racially discriminatory manner. There is no indication of the
racial composition of the jury, though a jury strike list is contained in the
record. Neither do we know whether any minorities in fact served on the
jury. The record simply does not support an inference of plain error on the
alleged Batson violation. Our Supreme Court in Ex parte Watkins, 509
So.2d 1074 (Ala.1987), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98
L.Ed.2d 226 (1987), refused to find plain error in a similar situation. It
stated:
The record as a whole simply does not raise an inference
that the state engaged in the practice of purposeful
discrimination. Under the plain error rule this Court will
“notice any plain error or defect in the proceeding under
review, whether or not brought to the attention of the trial
court, and take appropriate appellate action by reason
thereof, whenever such error has or probably has adversely
affected the substantial rights of the petitioner.” . . . The
defendant cannot successfully argue that error is plain in the
record when there is no indication in the record that the act
upon which error is predicated ever occurred (i.e., the
state’s use of its peremptory challenges to exclude blacks).
509 So.2d at 1076–77. See Kuenzel v. State, 577 So.2d 474
(Ala.Cr.App.1990), aff’d, 577 So.2d 531 (Ala.1991), cert. denied, 502
U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). (stating that there was
no evidence in the record to support the contention that the State of
Alabama used its peremptory strikes to exclude blacks from the jury).
“Under the circumstances of this case, we cannot conclude that a prima
facie case of purposeful discrimination has been established.” Pierce, 576
So.2d at 242.
Jenkins v. State, 627 So. 2d at 1041-42.
In his petition for a writ of certiorari in the Alabama Supreme Court, Jenkins
made the following argument:
328
Before jury selection began, counsel for Mr. Jenkins moved the
trial court to prohibit the State from systematically removing all black
jurors from the jury on the basis of race. (CR 88-89, “Defendant’s Motion
to Enjoin the Prosecutor from Utilizing His Peremptory Strikes to
Systematically Exclude Minorities from the Jury Panel;” R. 38-44). The
trial court improperly denied this motion. During jury selection, the
prosecution then peremptorily struck each and every qualified black juror
from the venire. After being convicted and sentenced to death, Mr.
Jenkins moved for a new trial on numerous grounds, including the racially
discriminatory manner in which his jury was struck. (CR 188). The
motion was denied. Mr. Jenkins then raised this issue before the Court of
Criminal Appeals in his principal brief before that court; relief was
denied, as was Mr. Jenkins’ application for rehearing before that court.
The jury venire at Mr. Jenkins’ trial included three qualified black
potential jurors. During jury selection, the prosecution peremptorily struck
each of these three qualified black potential jurors. As a result, no black
person sat on Mark Jenkins’ petit jury.
The State is expressly enjoined from discriminating against
potential jurors on the basis of race, both by state and Federal law. Batson
v. Kentucky, 479 U.S. 79 (1986); Ex parte Branch, 526 So. 2d 609 (Ala.
1987); § § 12-16-55 & 56, Code of Alabama (1975); Art. I Constitution
of Alabama. Although Mr. Jenkins is not black, the United States
Supreme Court and this Court have both held that regardless of his race,
a criminal defendant has standing to object to the State’s discriminatory
use of peremptory challenges. Powers v. Ohio, 499 U.S. __, 111 S. Ct.
1364 (1991). This holding has been applied retroactively by the Alabama
courts to cases pending on direct appeal, such as Mr. Jenkins’. See Ex
parte Mathis, 594 So. 2d 692 (Ala. 1991); Guthrie v. State, __ So. 2d __,
[7 Div. 287] (Ala. Crim. App. June 12, 1992); Guthrie v. State, __ So. 2d
__, [Ms. 89-1078] (Ala. Crim. App. Nov. 27, 1991), cert. denied, __ So.
2d __, [Ms. 1910663] (Ala. April 17, 1992). The State’s total exclusion
of qualified black jurors from the petit jury and the resulting all-white jury
creates a prima facie case of intentional discrimination on the part of the
State. The burden is on the State to rebut the prima facie case created by
the State’s use of its peremptory challenges.
329
....
Where, as here, the prosecution has used its peremptory strikes to
exclude all the qualified black prospective jurors from sitting on the petit
jury . . . the inference of discriminatory intent is strong. This case must be
remanded back to the trial court in order for the State to rebut this
inference.
The right to a jury chose without the unconstitutional intrusion of
racial discrimination is essential to a fair and reliable trial.
(R. Vol. 14, Tab 36 at 1-4). The Alabama Supreme Court affirmed the appellate court’s
judgment on this claim, without specifically addressing it. Ex parte Jenkins, 627 So.
2d at 1057. Jenkins asserts that the state court’s adjudication of this claim resulted in
a decision that was contrary to and involved an unreasonable application of clearly
established Federal law. (Doc. 12 at 93).
The court first notes that Jenkins never argued on direct appeal that the
prosecutor removed women from the venire for an improper reason.78 Thus, that portion
of the claim is procedurally barred from review in this court. Jenkins has offered
nothing to excuse the default of this claim. Further, to support his claim that females
78
The court further notes that in his Amended Rule 32 petition, Jenkins again raised the claim the
prosecution exercised its peremptory strikes in a discriminatory manner when it removed each of the
black venire members from the panel. (Rule 32 C.R. Vol. 18, Tab 47 at 387-89; Rule 32 C.R. Vol.
18, Tab 46 at 55-57). The Rule 32 court held that the claim was procedurally barred because it was
raised or addressed on direct appeal. (Rule 32 C.R. Vol. 45, Tab 77 at 277-80). Jenkins first
mentioned women in this argument on appeal from the denial of his Rule 32 petition. (Rule 32 C.R.
Vol. 37, Tab 52 at 12-24, 160-61). The Alabama Court of Criminal Appeals also found the claim to
be procedurally barred. Jenkins, 972 So. 2d at 158.
330
were removed for improper reasons, he has offered nothing more than the fact that the
prosecution used fourteen of its twenty-one peremptory strikes to remove females from
the jury.79 Jenkins has cited nothing to support his conclusion that the mere pattern of
strikes used by the prosecution was sufficient to prove a prima facie case of
discrimination at the time of his trial.
Further, the review of Jenkins’s Batson claim in this court is “limited to the
record that was before the state court that adjudicated the claim on the merits.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Section 2254(d)(1) refers, in the past tense, to a state-court adjudication
that “resulted in” a decision that was contrary to, or “involved” an
unreasonable application of, established law. This backward-looking
language requires an examination of the state-court decision at the time
it was made. It follows that the record under review is limited to the
record in existence at that same time i.e., the record before the state court.
Id. When he raised the claim on direct appeal, the record contained nothing more than
the final jury list, showing only the names of the jurors, and the strikes made by both
sides. (R. Vol. 10, Tab 27 at 111). There was nothing in the record to indicate the race
of anyone excluded from or selected to serve on the jury. Thus, there was no way for
the state appellate courts to determine whether or not the prosecution used its
peremptory challenges to eliminate black venire members from the jury in violation of
79
Although the prosecution did in fact use fourteen strikes to remove females from the venire, eight
females served on the jury.
331
Batson. Given the complete lack of evidence of purposeful discrimination, the Alabama
Court of Criminal Appeals’ determination that there was no evidence to support the
claim that the prosecution used its strikes in a racially discriminatory manner was
neither contrary to nor an unreasonable application of clearly established Federal law.
J.
The Trial Court’s Wholesale Adoption of the State’s Proposed Findings of
Fact Was Unreasonable
Jenkins claims that the trial court’s wholesale adoption of the state’s proposed
findings of fact in the order denying his Rule 32 petition was unreasonable. (Doc. 12
at 94-100). In raising this claim on appeal from the denial of his Rule 32 petition, he
argued that it deprived him of his “rights to due process, his right to a full and fair
hearing, his right to be free from cruel and unusual punishment, and other rights
guaranteed under the Federal and State constitutions.” (Rule 32 C.R., Vol. 37, Tab 52
at 164). In his brief on certiorari to the Alabama Supreme Court, he argued that the trial
court’s “wholesale adoption of the State’s proposed order denied Mr. Jenkins his right
to independent judicial findings of fact regarding the Rule 32 claims,” and that the
Alabama Court of Criminal Appeals’ conclusion that the claim had no merit violated
Anderson v. City of Bessemer, N.C., 470 U.S. 564 (1985). (Rule 32 C.R. Vol. 40, Tab
61 at 108). In this court, Jenkins argues that, as a result of the wholesale adoption of
the state’s proposed order, the state court process was defective, and it “infected the
332
fact findings with respect to each and every claim for relief, entitling him to de novo
review of all fact findings under § 2254(d)(2). (Doc. 35 at 18).80
When Jenkins presented this claim on appeal from the denial of his Rule 32
petition, the Alabama Court of Criminal Appeals denied it:
Jenkins argues that the circuit court erred in its wholesale adoption
of the State’s proposed order denying relief. Jenkins’s argument on this
point consists of only three paragraphs in his brief to this Court.
In Bell v. State, 593 So.2d 123 (Ala.Crim.App.1991), we stated:
The trial court did adopt verbatim the proposed order
tendered by the state; however, from our review of the
record, we are convinced that the findings and conclusions
are those of the trial court. The record reflects that the trial
court was thoroughly familiar with the case and gave the
appellant considerable leeway in presenting evidence to
support his claims. While the practice of adopting the state’s
proposed findings and conclusions is subject to criticism, the
general rule is that even when the court adopts proposed
findings verbatim, the findings are those of the court and
may be reversed only if clearly erroneous. Anderson v. City
80
Jenkins points out several examples from the trial court’s opinion, claiming they exhibit the trial
court’s “unreasonableness.” The court notes that these examples were not a part of this claim when
Jenkins presented it in state court. In state court, Jenkins made only a general claim that the wholesale
adoption of the state’s proposed order violated his constitutional rights. In addition to adding several
examples from the trial court’s opinion that allegedly violated his constitutional rights, he has
expanded the claim to include the allegation that, not only did the court fundamentally misconstrue
the facts, but the court also misapplied the law. Thus, to the extent Jenkins has added specific
allegations of unreasonable fact finding and allegations of misapplication of the law, those claims are
procedurally barred and will not be addressed as part of this claim. The court will address this claim
as it was presented in state court. To the extent Jenkins has alleged, as part of any other claim, that
the trial court’s findings of fact and/or law were unreasonable, and not due deference under the
AEDPA, that argument will be addressed as part of that claim.
333
of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84
L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895
(Ala.Cr.App. 1991); Weeks v. State, 568 So.2d 864
(Ala.Cr.App. 1989), cert. denied, [498] U.S. [882], 111
S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551
So.2d 435 (Ala.Cr.App.), cert. denied, 495 U.S. 911, 110
S.Ct. 1938, 109 L.Ed.2d 301 (1990).
593 So.2d at 126. See also DeBruce v. State, supra; Holladay v. State,
629 So.2d 673 (Ala.Crim.App. 1992); Wright v. State, 593 So.2d 111,
117-18 (Ala.Crim.App. 1991).
The circuit court’s findings are supported by the testimony and the
evidence that was presented at the Rule 32 proceedings. There is no
indication that the circuit court’s findings are “clearly erroneous.” See
Bell, supra.
Jenkins v. State, 972 So. 2d at 158-59.81
Jenkins maintains that in “adopting the State’s proposed order, without
independently reviewing the evidence or researching the applicable law, the state court
employed an unreasonable fact-finding procedure; thus, its findings are not entitled to
deference.” (Doc. 12 at 100). He reasons that since “the state court decision was based
upon an unreasonable fact-finding process, Mr. Jenkins is entitled to relief under a de
novo standard.” (Id.).
Although, in Anderson v. City of Bessemer, 470 U.S. at 572, the Supreme Court
81
The Alabama Supreme Court affirmed this finding without specifically addressing it. Ex parte
Jenkins, 972 So. 2d 159, 165 (Ala. 2005).
334
criticized the trial court’s verbatim adoption of findings of fact prepared by prevailing
parties, it ultimately held “that even when the trial judge adopts proposed findings
verbatim, the findings are those of the court and may be reversed only if clearly
erroneous.” Anderson, 470 U.S. at 572. In reviewing Jenkins’s claim on appeal from
the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals noted that
“Jenkins’s argument on this point consists of only three paragraphs in his brief to this
Court.” Jenkins, 972 So. 2d at 158. The court specifically found that the trial court’s
findings were supported by the testimony and evidence presented at the hearing on the
Rule 32 petition, and that there was no indication that the Rule 32 court’s findings were
“clearly erroneous.” Id. at 159. Jenkins has failed to demonstrate that the appellate
court’s holding on the claim, as it was presented in the state courts, that the Rule 32
court’s findings of fact were not “clearly erroneous,” is contrary to or an unreasonable
determination of clearly established Federal law, or that it was based upon an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.
In the brief filed alongside his June 20, 2013, amendment to his juror misconduct
claim, Jenkins argues that the Supreme Court’s ruling in Jefferson v. Upton, 560 U.S.
284 (2010), “provides considerable support” to his general claim that the Rule 32
court’s findings are not entitled to deference since the court adopted the state’s
335
proposed order verbatim82. (Doc. 35 at 16).
Moreover, even if Jefferson applied to this claim, Jenkins would not be entitled
to relief. In Jefferson, the Court applied the pre-AEDPA version of § 2254, holding that
the state court had denied the death-penalty petitioner a full, fair, and adequate hearing,
because: (1) the state court had adopted factual findings drafted exclusively by the
state's attorneys, pursuant to an ex parte request from the state court judge; (2) the state
court did not notify the petitioner of the request made to opposing counsel; and (3) the
findings proposed by the state recounted evidence from a non-existent witness. See 560
U.S. at 292. Jenkins’s case is both legally and factually distinguishable from Jefferson.
In rejecting a similar claim in Jones v. GDCP Warden, the Eleventh Circuit held:
First, Jefferson never could have held, nor did it presume to hold,
that this kind of adopted order is not entitled to AEDPA deference.
Jefferson addressed a claim arising under the pre-AEDPA version of §
2254; the Jefferson Court was therefore operating under a different statute
than the one controlling this case. Moreover, even absent that legal
distinction, the facts of this case are critically different from Jefferson.
There, the state court adopted a proposed order that it had obtained ex
parte from the State, without notice to Jefferson. Here, notably, the state
court requested that both Jones and the State prepare proposed orders.
82
In the brief, Jenkins also “submits that the circumstances surrounding the denial of his successive
Rule 32 petition . . . further demonstrate that the process the state courts utilized to find facts in his
case were consistently defective.” (Doc. 35 at 17 n. 7). He suggests that “this Court should consider
those circumstances and find that they underscore the Court’s obligation to review the facts de novo.”
(Id.). However, the actions and findings of the second Rule 32 court are totally unrelated to the
findings of the first Rule 32 court, and could not have had any impact on the findings of the first Rule
32 court.
336
The court conducted an evidentiary hearing in August and September
2004, at which Jones was represented ably by his habeas counsel, who
presented several witnesses and 125 exhibits spanning about 5,000 pages.
The state court then took a year and a half to consider the party's
submissions and only issued its order denying habeas relief in March
2006. In stark contrast to Jefferson, the circumstances here demonstrate
that Jones received a full and fair hearing on all of his habeas claims.
Jones, 815 F.3d 689, 715 (11th Cir. 2016). Simply put, Jones held that the legal
analysis in Jefferson does not apply to the post-AEDPA version of § 2254.
This case is also factually distinct from Jefferson. The facts of this case are like
those in Jones, and the Eleventh Circuit found those facts to be “critically different”.
Jones, 815 F. 3d at 715. Specifically, in this case, as in Jones, the Rule 32 court
requested that both Jenkins and the state submit briefs or proposed opinions after
receiving transcripts of the evidentiary hearing. (See Rule 32 C.R. Vol. 24 at 338; Rule
32 R. Vol. 22 at 699). Similarly, the Rule 32 court conducted an evidentiary hearing
on Jenkins’s petition, on December 10, 1996, and January 20-21, 1997. At that hearing,
Jenkins was represented by counsel, who presented fourteen witnesses and a variety
of exhibits. (Rule 32 R. Vol. 19, Tab 48 at 1 - Rule 32 R. Vol. 22 at 700). Jenkins
submitted his memorandum of law to the court on April 4, 1997. (Rule 32 C.R. Vol.
24 at 354 - Rule 32 C.R. Vol. 25 at 411; Rule 32 Vol. 24 at 338). On April 18, 1997,
the state submitted its original proposed memorandum opinion. (Rule 32 C.R. Vol. 23
at 151 - Rule 32 C.R. Vol. 24 at 201-250). In May, 1997, Jenkins submitted an
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“Opposition to State’s ‘Proposed Memorandum Opinion.’” (Rule 32 C.R. Vol. 25 at
422-452). Thereafter, on or about December 2, 1997, the state moved for leave to file
a “revised and corrected proposed memorandum opinion,” accompanied by the revised
document.83 (Rule 32 C.R. Vol. 24 at 251-335).
The Rule 32 court issued its order denying the petition on December 31, 1997,
more than seven months after receiving the parties’s initial submissions and several
weeks after receiving the state’s revised and corrected memorandum. (Rule 32 C.R.
Vol. 45, Tab 77 at 267-346). The petition had been pending before the court since May
26, 1995, with the court actively involved in the proceedings throughout that time.
Thus, like the petitioner in Jones, and in contrast to the petitioner in Jefferson, the
circumstances here demonstrate that Jenkins received a full and fair hearing on his
petition. Jefferson does not entitle Jenkins to relief.
K.
The Manner of Execution Used by the State of Alabama Constitutes Cruel
and Unusual Punishment
Jenkins’s final claim is that Alabama’s lethal injection protocol creates an
unnecessary and unacceptable risk of pain and suffering, in violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment. (Doc. 12 at 103).
Specifically, he claims that:
83
Jenkins indicates that the revised and corrected memorandum was submitted to correct an editing
error. (Doc. 35 at 9).
338
Alabama utilizes the same three-drug protocol of sodium thiopental,
pancuronium bromide, and potassium chloride, as all other death penalty
jurisdictions that employ lethal injection. The first drug, sodium
thiopental, is intended to anesthetize the inmate and render him
unconscious. However, there is a reasonable likelihood that sodium
thiopental, if ineffectively delivered, will not provide the necessary
sedative effect for the duration of the execution process. Without
adequate depth of anesthesia, Mr. Jenkins will experience conscious
paralysis and suffocation as the result of the administration of
pancuronium bromide, and excruciating agony from the searing burn and
cardiac arrest caused by potassium chloride. Simple and readily available
remedial measures are available to the state of Alabama to ensure that Mr.
Jenkins has achieved a surgical plane of anesthesia before the second and
third chemicals are administered.
(Id. at 102).
Alternatively, he argues that electrocution constitutes cruel and unusual
punishment under evolving standards of decency, because:
Alabama’s protocol fails to require sufficient training of execution
personnel to enable to them to reliably induce an appropriate level of
anesthesia, including training in the proper insertion and maintenance of
intravenous access lines and/or catheters. Alabama’s lethal injection
protocol does not establish the minimum qualifications and expertise
required of the personnel who insert IV lines and administer the lethal
chemicals. Most fundamentally, Alabama fails to require any monitoring
of anesthetic depth to ensure that the painful second and third chemicals
are not administered to a conscious inmate. Alabama does not require
execution personnel to be in the necessary “bedside” position to make
such an assessment. Alabama fails to provide for appropriate review of
the performance of execution personnel against objective criteria.
Deficiencies in Alabama’s record-keeping further corrode confidence in
its lethal injection protocols and practices. Alabama’s wholly unnecessary
use of a neuromuscular blocking agent, pancuronium bromide, insidiously
acts to mask any pain and suffering that the inmate is experiencing and to
339
prevent the inmate from communicating his distress to execution
personnel.
(Id. at 103).
The respondent correctly argues that review of this claim is foreclosed under the
authority of Hill v. McDonough, 547 U.S. 573, 580 (2006). In Hill, the Supreme Court
held that claims challenging the execution process should be brought in a suit pursuant
to 42 U.S.C. § 1983. See Thompkins v. Secretary, Dept. of Corrections, 557 F. 3d
1257, 1261 (11th Cir. 2009) (citing Hill v. McDonough, 547 U.S. 573, 579-83 (2006)).
Accordingly, this court is without jurisdiction to entertain this claim in a habeas
context. As such, this claim is due to be dismissed.
VI. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is due to be
denied. A separate final judgment consistent with this memorandum of opinion will be
entered simultaneously herewith.
As to the foregoing it is SO ORDERED this the 31st day of August, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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