Jenkins v. McCarty et al

Filing 28

MEMORANDUM OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS for 24 Report and Recommendations, Denying 19 Motion to Strike filed by Robert L. Jenkins and Staying this Matter for Consideration of Supplemental Briefing. Signed by District Judge Halil S. Ozerden on 1/7/2016 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROBERT L. JENKINS # 38083
v.

PETITIONER
Civil No. 1:15cv28-HSO-RHW

RON KING and MARSHALL L. FISHER

RESPONDENTS

MEMORANDUM OPINION AND ORDER
ADOPTING IN PART THE REPORT AND RECOMMENDATIONS [24] OF
MAGISTRATE JUDGE, DENYING PETITIONER’S MOTION TO STRIKE
[19], AND STAYING THIS MATTER FOR CONSIDERATION OF
SUPPLEMENTAL BRIEFING
BEFORE THE COURT is the Report and Recommendations [24] of United
States Magistrate Judge Robert H. Walker, recommending (1) that the Court deny
Petitioner’s Motion [19] to Strike Respondents’ Response in Opposition [18] and (2)
that the Court deny habeas relief. The Report and Recommendations [24] was
entered on November 4, 2015. Petitioner has filed Objections [25] to the Report and
Recommendations, Respondents have filed an Opposition to [26] Petitioner’s
Objections, and Petitioner has filed a Reply [27].
Having considered the record and relevant legal authority, the Court will
adopt the Report and Recommendations [24] in part, in that Petitioner’s Motion to
Strike [19] will be denied. As to the recommendation that the Court deny habeas
relief, the Court will stay this matter, in order to permit supplemental briefing upon
resolution by the United States Court of Appeals for the Fifth Circuit of the case
styled Grim v. Epps, No. 15-60720 (5th Cir.) (appealing the judgment of the district
court in Grim v. Epps, 2015 WL 5883163, *12 (N.D. Miss. Oct. 8, 2015)).

I. BACKGROUND
Following a jury trial in the Circuit Court of Harrison County, Mississippi,
Petitioner Robert Jenkins was found guilty of possession of cocaine in an amount of
more than 0.1 gram but less than 2 grams, in violation of Miss. Code Ann. §
41-29-139. Jenkins v. State, 102 So. 3d 1063, 1064 (Miss. 2012). Petitioner was
classified as a habitual offender and sentenced to life imprisonment. Id. at 1065.
At Petitioner’s trial, the State introduced a forensic laboratory report
confirming that the substance Plaintiff possessed was cocaine, and that the
substance weighed 0.1 gram—the minimum weight in the statutory range for the
charged offense. Obj. [25], at 1. The technician from the Mississippi Crime
Laboratory who weighed the substance, Alison Smith, did not testify at trial
because she was on medical leave following a diagnosis of cancer and was therefore
unavailable. Id.; R. & R. [24], at 3. Instead, the lab report was introduced through
the testimony of a supervisor, Timothy Gross, who had also signed the report as a
technical reviewer and confirmed the analytical result that the substance was
cocaine. R. & R. [24], at 3. Gross testified that he did not, however, personally
weigh the sample. R. [16-4], at 78; Obj. [25], at 3. The weight of the substance was
an issue of signifigance at trial: at the close of the State’s evidence, Petitioner’s
counsel moved for a directed verdict on grounds that the State had not specifically
proven that the weight of the substance was 0.1 grams. R. [16-4], at 79–80. This
motion was overruled, and the jury found Petitioner guilty.
After exhausting his remedies in State court, Petitioner filed a Petition [1] for
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a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on December
16, 2014. Petitioner claims that his Sixth Amendment right to confront the
witnesses against him was violated when the trial court permitted the supervisor,
Gross, to present testimonial evidence in place of the analyst, Smith, who actually
performed the tests and weighed the sample. Pet. [1], at 5–6; Am. Pet. [5], at 6.
Specifically, Petitioner argues that the Mississippi Supreme Court’s decision that
his Sixth Amendment rights were not violated was an unreasonable application of
clearly established federal law as determined by the Supreme Court of the United
States in Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011) (holding that
“[t]he accused’s right is to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular scientist.”). Mem. Supp. Pet.
[2], at 1–2.
Respondents filed an Answer [15] to the Amended Petition [5] on April 1,
2015. Petition filed a Rebuttal [17], on April 10, 2015. Respondents then filed an
additional Response in Opposition to Petitioner’s Rebuttal [18] on April 16, 2015.
Respondents’ additional Response [18] became the subject of a Motion to
Strike [19], filed by Petitioner. In the Motion to Strike [19], Petitioner argued that
the additional Response [18] was not permitted by the Rules Governing Section
2254 Cases and moved the Court to strike the Response [18] or, alternatively to
consider Petitioner’s Reply to the Response [20], which was filed contemporaneously
with the Motion to Strike. Respondents filed a Response [21] opposing the Motion
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to Strike [19].
Petitioner also filed a Supplemental Reply to Respondents’ Answer [22] on
October 9, 2015, to notify the Court of new persuasive authority from the United
States District Court for the Northern District of Mississippi, Grim v. Epps, 2015
WL 5883163, *12 (N.D. Miss. Oct. 8, 2015). Petitioner’s Supplemental Reply [19]
informed the Court that in Grim, the district court granted habeas relief under
similar circumstances to the present case. On October 22, 2015, Respondents filed
a Response to Petitioner’s Supplemental Briefing [23], pointing out that the Grim
decision is on appeal to the Fifth Circuit and arguing that this Court should “await
the Fifth Circuit’s decision on this issue.” Supplemental Resp. [23], at 3.
Respondents did not argue in supplemental briefing that this case is factually
distinguishable from Grim. Id.
On November 4, 2015, the Magistrate Judge entered a Report and
Recommendations [24], recommending that the Court (1) deny the Motion to Strike
[19], and (2) deny habeas relief. Petitioner filed Objections [25] to the Report and
Recommendations only as to the Magistrate’s recommendation that habeas relief be
denied. Petitioner did not object to the Magistrate’s recommendation that the Court
deny the Motion to Strike [19]. Respondents filed a Response [26] in Opposition to
Plaintiff’s Objections. Petitioner filed a Reply [27] on November 30, 2015.
II. DISCUSSION
A.

Legal Standard
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
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72(b)(3), the district judge must “determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” 28 U.S.C. § 636(b)(1);
F.R.C.P. 72(b)(3). When there has been no objection to a magistrate judge’s ruling,
a clearly erroneous, abuse of discretion, and contrary to law standard is
appropriate. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). After
conducting the required review, the district judge may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge . . .
receive further evidence[,] or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).
B.

Recommendation to Deny Motion to Strike [19]
Petitioner did not object to the Magistrate Judge’s recommendation that the

Motion [19] to Strike Respondent’s Response in Opposition [18] be denied. Pet.’s
Objs. [25]. The Court finds that this recommendation was not clearly erroneous or
contrary to law. Both the additional Response [18] and Petitioner’s Reply to the
Response [20] were considered in the Report and Recommendations [24]. The Court
will adopt this portion of the Magistrate’s Report and Recommendations [24], and
the Motion to Strike [19] will be denied.
C.

Recommendation to Deny Habeas Relief
Petitioner points out that the United States District Court for the Northern

District of Mississippi has recently granted a writ of habeas corpus in a “nearly
identical” case, Grim v. Epps, 2015 WL 5883163, *12 (N.D. Miss. Oct. 8, 2015),
appeal filed No. 15-60720 (5th Cir.) (oral argument scheduled for the week of
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February 1, 2016). Obj. [25], at 2. The Court was put on notice of the decision in
Grim through Petitioner’s Supplemental Reply [22] filed on October 9, 2015.
Respondents filed a Rebuttal [23] to this supplemental briefing, also addressing
Grim, on October 22, 2015.
Grim also involved a Mississippi Crime Lab analysis of a substance reported
as cocaine, introduced through the testimony of a technical reviewer rather than the
analyst who performed the test. Grim, 2015 WL 5883163, at *1 (citing Bullcoming,
131 S. Ct. at 2705). The Court in Grim granted habeas relief, finding that
Bullcoming had clearly established a criminal defendant’s right “to confront the
analyst who performed the underlying analyses.” Id.
After conducting a de novo review of the record in light of Petitioner’s
Objections [25], the Court is of the opinion that the facts of Grim are sufficiently
similar to the instant case such that the more prudent course would be to reserve
the question of whether Petitioner is entitled to habeas relief for consideration in
light of the ultimate resolution of Grim, whether by the Fifth Circuit or the
Supreme Court. The Court will stay this case until such time as Grim becomes
final.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendations [24] of the United States Magistrate Judge is ADOPTED IN
PART, and the Motion [19] to Strike Respondents’ Response in Opposition [18] is
DENIED.
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IT IS, FURTHER, ORDERED AND ADJUDGED that this matter is
STAYED pending the ultimate resolution of Grim v. Epps, No. 3:14cv134, 2015 WL
5883163 (N.D. Miss. Oct. 8, 2015), which is currently pending before the Fifth
Circuit as case number 15-60720. Either party may move to lift the stay upon final
resolution of Grim, at which time the Court will accept supplemental briefing in
light of the ultimate resolution of Grim.
SO ORDERED AND ADJUDGED, this the 7th day of January, 2016.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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