Jenkins v. McCarty et al

Filing 33

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. Petitioner's Amended Petition for Writ of Habeas Corpus 5 filed pursuant to 28 U.S.C. 2254 is denied, and this case will be dismissed with prejudice. A separate judgment will be entered in accordance with this Order as required by Federal Rule of Civil Procedure 58. Signed by District Judge Halil S. Ozerden on 1/3/17 (PKS)

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

PETITIONER

v.

Civil No. 1:15cv28-HSO-RHW

RON KING and MARSHALL L. FISHER

RESPONDENTS

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATIONS [24] AND DENYING
AMENDED PETITION FOR WRIT OF HABEAS CORPUS [5]
BEFORE THE COURT is the Report and Recommendations [24] of United
States Magistrate Judge Robert H. Walker, recommending that the Court deny
Petitioner Robert Jenkins’ (“Petitioner”) Amended Petition [5] for Writ of Habeas
Corpus pursuant to 28 U.S.C. §2254. The Report and Recommendations [24] was
entered on November 4, 2015. Petitioner filed Objections [25] to the Report and
Recommendations, Respondents filed an Opposition to [26] Petitioner’s Objections,
and Petitioner filed a Reply [27]. The parties also submitted supplemental briefing
on November 30, 2016. See Resp’t Suppl. Br. [31]; Pet’r Suppl. Br. [32].
Having considered the Report and Recommendations [24] and conducted a de
novo review of the portions to which Petitioner objects, the Court finds that
Petitioner’s Objections [25] should be overruled. The Report and Recommendations
[24] will be adopted as the finding of the Court in light of the resolution of the
appeal of the judgment of the district court in Grim v. Epps, No. 3:14–CV–00134–
DMB–DAS, 2015 WL 5883163 (N.D. Miss. Oct. 8, 2015). On March 8, 2016, the

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United States Court of Appeals for the Fifth Circuit reversed the district court’s
judgment granting habeas relief, and the Supreme Court of the United States
denied the petition for a writ of certiorari on October 3, 2016. Grim v. Fisher, 816
F.3d 296 (5th Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026 (U.S. Oct. 3,
2016). In light of the Fifth Circuit decision in Grim v. Fisher, Petitioner’s request
for habeas relief pursuant to 28 U.S.C. § 2254 will be denied and the Amended
Petition [5] will be dismissed with prejudice.
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. § 41-29139. 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 Petitioner possessed was cocaine and that it 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 tested and
weighed the substance, Alison Smith (“Smith”), was unavailable to testify at trial
because she was on extended medical leave. Id.; R. & R. [24] at 3. Instead, the lab
report was introduced through the testimony of a supervisor, Timothy Gross
(“Gross”), who oversaw the overall operation of the lab and had signed the report as
a technical and administrative reviewer. R. & R. [24] at 3.

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Gross reviewed the data from the cobalt thiocyanate test and the gas
chromatography mass spectroscopy test performed by Smith, and he reached an
independent conclusion from his analysis of the examination data that the
substance tested was cocaine. Id. Gross also testified that the report indicated that
the substance weighed at least 0.1 gram, but Gross did not personally weigh the
sample. Pet’r Suppl. Br. [32] at 8. The policy of the lab was not to report any
weight less than one tenth of a gram, but to round it to the lowest tenth of a gram in
the report. Id. A sample reported to weigh 0.1 gram could thus weigh anywhere
between 0.10 and 0.19 grams. Id. The weight of the substance was an issue of
significance 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
a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on December
16, 2014, as well as an Amended Petition [5] on January 20, 2015. 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 Supreme Court of Mississippi’s decision that his Sixth Amendment
right was not violated was an unreasonable application of clearly established

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federal law as determined by the Supreme Court in Bullcoming v. New Mexico, 564
U.S. 647, 652 (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. Petitioner filed a Rebuttal [17] on April 10, 2015. Respondents then filed an
additional Response in Opposition to Petitioner’s Rebuttal [18] and Petitioner filed
a Reply to the Response [20]. 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, in which the district court granted habeas relief under
circumstances similar to the present case. No. 3:14–CV–00134–DMB–DAS, 2015
WL 5883163 (N.D. Miss. Oct. 8, 2015). On October 22, 2015, Respondents filed a
Response to Petitioner’s Supplemental Briefing [23], arguing that the Court should
await a decision in the Grim case, which had been appealed to the Fifth Circuit.
Suppl. Resp. [23] at 3.
On November 4, 2015, the Magistrate Judge entered a Report and
Recommendations [24], recommending that the Court deny habeas relief.1

The Report and Recommendations [24] also included a recommendation that the Court
deny Petitioner’s Motion [19] to Strike Respondents’ Response in Opposition to Petitioner’s
Rebuttal [18]. Petitioner did not object to this recommendation, and the Court previously
1

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Petitioner filed Objections [25] to the Report and Recommendations [24] as to the
Magistrate’s recommendation that habeas relief be denied. Respondents filed a
Response [26] in Opposition to Petitioner’s Objections [25]. Petitioner filed a Reply
[27] on November 30, 2015.
In an Order [28] dated January 7, 2016, the Court stayed this matter pending
the ultimate resolution of the appeal of the judgment of the district court in Grim v.
Epps, No. 3:14–CV–00134–DMB–DAS, 2015 WL 5883163 (N.D. Miss. Oct. 8, 2015).
On March 8, 2016, the Fifth Circuit issued an opinion reversing the district court’s
judgment granting habeas relief, and the Supreme Court denied Petitioner’s
petition for a writ of certiorari on October 3, 2016. Grim v. Fisher, 816 F.3d 296
(5th Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026 (U.S. Oct. 3, 2016). On
November 16, 2016, this Court lifted the stay of this case and indicated that it
would accept supplemental briefing from the parties in light of the outcome of the
appeal in Grim. Order [30]. Supplemental briefing was submitted by Petitioner and
Respondents on November 30, 2016. Resp’t Suppl. Br. [31]; Pet’r Suppl. Br. [32].
II. DISCUSSION
A.

Legal Standard
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure

72(b)(3), the district judge must “determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3).
However, the district court need not “reiterate the findings and conclusions of the
adopted the Report and Recommendations [24] in part and denied Petitioner’s Motion [19]
to Strike Respondents’ Response in Opposition [18] in an Order [28] dated January 7, 2016.

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magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Nor must
it consider “[f]rivolous, conclusive or general objections.” Battle v. U.S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). 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 [and] may also receive further evidence or recommit the matter to
the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1) (2012).
In so reviewing Petitioner’s Objections [25], the Court is mindful that
Congress, through the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2241, et seq., has restricted federal court review of habeas petitions filed
on behalf of persons in state custody. Burt v. Titlow, 134 S. Ct. 10, 16 (2013)
(“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.”). 28 U.S.C. § 2254(d) provides:
(d) 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
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(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) (2012) (emphasis added).

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“A decision is contrary to clearly established federal law under § 2254(d)(1) if
the state court (1) arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law; or (2) confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and reaches an
opposite result.” Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quotations
omitted). A decision involves “an unreasonable application of clearly established
federal law” under § 2254(d)(1) “if the state court (1) identifies the correct governing
legal rule from the Supreme Court’s cases but unreasonably applies it to the facts;
or (2) either unreasonably extends a legal principle from Supreme Court 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.” Id. (quotations omitted). A state
court’s application of law to facts is unreasonable only if it is “objectively
unreasonable,” not merely “incorrect or erroneous.” Id. The state court’s factual
determinations are presumed correct pursuant to § 2254(e)(1) and may only be
rebutted by clear and convincing evidence. Id.
“Section 2254(d) sets forth a ‘highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the
doubt.’” Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013) (quoting Cullen v.
Pinholster, 563 U.S. 170, 171 (2011)). “As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was

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an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
B.

Recommendation to Deny Habeas Relief
The Supreme Court of Mississippi evaluated the merits of Petitioner’s Sixth

Amendment claim and concluded that his Confrontation Clause right was not
violated. Jenkins v. State, 102 So. 3d 1063 (Miss. 2012). Petitioner argues that
habeas relief is warranted on the grounds that the Supreme Court of Mississippi’s
decision rejecting his Sixth Amendment claim and affirming Petitioner’s conviction
was contrary to, and an unreasonable application of, clearly established precedent
in Bullcoming v. New Mexico, 564 U.S. 647 (2011). Am. Pet. [5] at 6.
In Bullcoming, the prosecution introduced a forensic laboratory report
certifying the results of a blood-alcohol concentration analysis during Bullcoming’s
trial on charges of driving while intoxicated. Bullcoming, 564 U.S. at 651. The
analyst who personally performed the analysis and signed the certification did not
testify at trial. Id. Instead, a different laboratory analyst who “was familiar with
the laboratory’s testing procedures, but had neither participated in nor observed the
test on Bullcoming’s blood sample” testified about the report. Id.
The New Mexico Supreme Court held that the testimony of the surrogate
analyst satisfied the Confrontation Clause. Id. The Supreme Court disagreed:
The question presented is whether the Confrontation Clause permits
the prosecution to introduce a forensic laboratory report containing a
testimonial certification—made for the purpose of proving a particular
fact—through the in-court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the certification.

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We hold that surrogate testimony of that order does not meet the
constitutional requirement. The 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.
Id. at 652. Petitioner argues that, under Bullcoming, his Sixth Amendment right
was violated when the trial court permitted the laboratory report to be introduced
and allowed Gross to testify as to the nature and weight of the controlled substance
because Petitioner did not have the opportunity to cross-examine Smith, the analyst
who actually performed the tests and prepared the report. Am. Pet. [5] at 6.
In the Report and Recommendations [24], the Magistrate Judge concluded
that the state court decision was not contrary to and did not involve an
unreasonable application of clearly established federal law as stated in Bullcoming.
R. & R. [24] at 8. The Magistrate Judge found that this case was factually
materially distinguishable from Bullcoming because the witness in Petitioner’s
trial, Gross, signed the lab report himself and testified as to his independent
conclusions based on his own extensive experience as a drug analyst. Id. at 7.
Gross was the manager of the regional crime laboratory responsible for overseeing
its operations and was the administrative and technical reviewer of cases within his
expertise. Id. at 3.
While Gross did not personally observe the testing, he was Smith’s supervisor
and had reviewed Petitioner’s entire case file. Id. at 3. Gross “performed
procedural checks by reviewing all of the data submitted to ensure that the data
supported the conclusions contained in the report” and “had ‘intimate knowledge’ of

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the underlying analysis and the report prepared by the primary analyst.” Id. at 7-8
(quoting Jenkins v. State, 102 So. 3d 1069 (Miss. 2012)). In contrast, the witness
who testified at trial in Bullcoming had not performed, observed, or reviewed the
testing, did not sign the certification, and did not testify regarding his independent
opinion concerning the lab results. Id. at 7; Bullcoming, 564 U.S. at 655; 662.
The Magistrate Judge cited as persuasive authority Justice Sotomayor’s
concurring opinion in Bullcoming that emphasized “the limited reach of the Court’s
opinion” because Bullcoming was “not a case in which the person testifying is a
supervisor, reviewer, or someone else with a personal, albeit limited, connection to
the scientific test at issue.” R. & R. [24] at 7 (quoting Bullcoming, 564 U.S. at 672
(Sotomayor, J., concurring in part)). Finding that the holding of Bullcoming did not
necessarily extend to cases where the testifying witness was a supervisor or
reviewer with a personal connection to the testing, the Magistrate Judge concluded
that Bullcoming did not “clearly establish” the principle that testimony from anyone
other than the individual who actually performed the testing on a substance would
be a violation of the Confrontation Clause. Id. at 7-8 (citing United States v.
Johnson, 558 F. App’x 450, 453 (5th Cir. 2014) (recognizing that the law is unclear
whether the testimony of a lab analyst’s supervisor would constitute a violation
under Bullcoming)). Accordingly, the Magistrate Judge recommended that the
request for habeas relief be denied. Id. at 8.

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C.

Petitioner’s Objections [25]
Petitioner objects to the Report and Recommendations [24] on three grounds:

(1) the state court decision was contrary to clearly established federal law because it
confronted facts that were materially indistinguishable from Bullcoming but
reached an opposite result; (2) the state court unreasonably applied the clearly
established federal law of Bullcoming to Petitioner’s case; and (3) the Magistrate
Judge erred in concluding that there is uncertainty whether the Bullcoming holding
created clearly established federal law that applied to the facts of Petitioner’s case.
See Obj. [25].
First, Petitioner contends that the Supreme Court of Mississippi’s decision
was contrary to clearly established federal law under § 2254(d)(1) because the Court
confronted facts that were materially indistinguishable from relevant Supreme
Court precedent in Bullcoming but reached the opposite conclusion. Id. at 4.
Petitioner argues that this case is not materially distinguishable from Bullcoming
because, in both cases, the prosecution introduced laboratory reports containing
testimonial statements of one analyst through the in-court testimony of a second
scientist who had neither performed nor observed the testing. Id. at 9. Petitioner
claims that Bullcoming thus clearly established that he had a right to confront the
analyst who actually performed the testing when her out-of-court testimonial report
was introduced as evidence at trial. Id.
Petitioner also argues that the Magistrate Judge erroneously concluded that
Gross testified as to his independent conclusions regarding both the nature and the

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weight of the substance based on his own experience as a drug analyst. Id. at 14.
Petitioner argues that even if Gross’ testimony concerning his own independent
opinion of the data with regards to the nature of the substance did not violate the
Confrontation Clause, there is nevertheless “no basis for concluding that Gross is a
constitutionally adequate surrogate witness regarding Smith’s out-of-court
testimonial declaration that the substance weighed 0.1 gram.” Id. at 10.
Petitioner contends that Gross did not weigh the substance, did not observe
the weighing, and could not possibly have conducted any technical review of raw
data upon which to base an independent opinion as to the weight of the sample
apart from relying solely on the conclusion in Smith’s report. Id at 10-11.
Petitioner points out that the Supreme Court of Mississippi did not find that Gross
had formed an independent opinion as to the weight of the substance, but found
only that “[b]ased on the data reviewed, Gross reached his own conclusion that the
substance tested was cocaine.” Id at 14-15 (quoting Jenkins, 102 So. 3d at 1069).
Petitioner further objects that the Supreme Court of Mississippi
unreasonably applied Bullcoming to the facts of Petitioner’s case when it concluded
that his Confrontation Clause right had not been violated, in light of the alleged
lack of material distinctions between the two cases. Id. at 16. Finally, Petitioner
objects to the Magistrate Judge’s position that the breadth of the holding of
Bullcoming is unclear. Id. at 16. The Magistrate Judge was “unpersuaded that
Bullcoming has ‘clearly established’ that testimony from anyone other than the
analyst who performed the testing on a controlled substance would violate the right

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of confrontation.” R. & R. [24] at 8. Petitioner avers that Bullcoming clearly
established that defendants have a Sixth Amendment right “to be confronted with
the analyst who made the certification, unless the analyst is unavailable at trial,
and the accused had an opportunity, pretrial, to cross-examine that particular
scientist.” Obj. [25] at 16 (quoting Bullcoming, 564 U.S. at 652).
In light of the Fifth Circuit resolution of Grim v. Fisher, 816 F.3d 296 (5th
Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026 (U.S. Oct. 3, 2016), this
Court concludes that Petitioner’s Objections [25] should be overruled.
D.

Grim v. Fisher
Grim was convicted of selling cocaine, and his conviction and sentence were

affirmed on appeal. See Grim v. State, 102 So. 3d 1123 (Miss. Ct. App. 2010).
During his trial, the prosecution offered a Mississippi Crime Laboratory analysis of
a substance reported as cocaine, introduced through the testimony of a technical
reviewer who had signed the report instead of the analyst who personally performed
the test. Grim v. State, 102 So. 3d 1073, 1077 (Miss. 2012). The witness who
actually testified at trial had neither performed nor observed the analysis, but had
reviewed the report to ensure that the analyst had followed the proper procedure to
obtain the result. Id. Following the Bullcoming decision, the Supreme Court of
Mississippi granted a writ of certiorari “to examine whether the trial court erred by
allowing a laboratory supervisor, who neither observed nor participated in the
testing of the substance, to testify in place of the analyst who had performed the
testing.” Id. at 1075.

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In a decision that mirrors the reasoning in Jenkins v. State,2 the Supreme
Court of Mississippi concluded in Grim that it was permissible to introduce the
laboratory report without violating the Confrontation Clause, even though Grim did
not have an opportunity to cross-examine the analyst who actually tested the
substance, because the reviewer who testified was sufficiently involved in the
preparation of the report. Id. at 1081. The Supreme Court of Mississippi held that
a supervisor, reviewer, or other analyst involved may testify in place of
the primary analyst where that person was ‘actively involved in the
production of the report and had intimate knowledge of analyses even
though [he or] she did not perform the tests first hand.’ McGowen [v.
State, 859 So.2d 320, 340 (Miss. 2003)]. [The technical reviewer] met
this standard, and the trial court did not abuse its discretion by
allowing him to testify. Grim had the opportunity to confront and
cross-examine [the technical reviewer] at trial, which satisfied his
Sixth Amendment right to confront the witness against him.
Id. Finding no violation of the Confrontation Clause, the judgments of the Court of
Appeals and the Circuit Court were affirmed. Id.
The United States District Court for the Northern District of Mississippi
granted Grim habeas relief, finding that the Supreme Court of Mississippi’s
decision was contrary to clearly established federal law because Bullcoming had
clearly established a criminal defendant’s “right to confront the analyst who
performed the underlying analyses.” Grim v. Epps, No. 3:14–CV–00134–DMB–
DAS, 2015 WL 5883163, at *1 (N.D. Miss. Oct. 8, 2015). Acknowledging that the
technical reviewer in Grim had more significant personal involvement in the testing

Jenkins v. State was decided on October 4, 2012, and Grim v. State was decided on
October 18, 2012.
2

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than did the witness in Bullcoming, the district court nevertheless found that Grim
fell within “Bullcoming’s doctrinal reach.” Id. at *11. The district court concluded
that Grim’s right to confrontation was violated when the testifying reviewer “had
absolutely no firsthand knowledge regarding what [the testing analyst] knew or
observed during the course of his examination of the evidence.” Id. at *12.
On appeal, the Fifth Circuit reversed the district court, holding that the law
was not clearly established as to whether the Confrontation Clause was violated by
the introduction of the laboratory analysis through the in-court testimony of the
technical reviewer who had neither performed nor observed the analysis. Grim v.
Fisher, 816 F.3d 296 (5th Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026
(U.S. Oct. 3, 2016). The Fifth Circuit’s analysis in reaching this conclusion is
relevant to Petitioner’s Objections in this case:
[A]t most, the holding of Bullcoming clearly establishes that, when one
scientist or analyst performs a test reported in a forensic laboratory
report containing a testimonial certification—made for the purpose of
proving a particular fact—and the prosecution introduces the report
and certification to prove that particular fact, the Confrontation Clause
forbids the prosecution from proving that particular fact through the
in-court testimony of a scientist or analyst who neither signed the
certification nor performed or observed the test reported in the
certification. Bullcoming does not clearly establish what degree of
involvement with the forensic testing, beyond what was present in
Bullcoming, is required of a testifying witness. In other words, at most,
Bullcoming holds that if scientist A performed the test, the prosecution
cannot prove a particular fact contained in scientist A’s testimonial
certification by offering the in-court testimony of scientist B, if scientist
B neither signed the certification nor performed or observed the test.
But Bullcoming does not hold that scientist B cannot testify even if he
has a sufficient degree of involvement with the forensic testing.
Id. at 307 (emphasis added).

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The Fifth Circuit distinguished the degree of the witness’s involvement in the
forensic analysis in Grim from Bullcoming, in which the testifying witness played
no role at all in performing the analysis, did not review or observe the testing, and
did not sign the analysis certification. Id. at 307-08. The testifying technical
reviewer in Grim had instead
examined the analyst’s report and all of the data, including everything
the analyst did to the item of evidence; ensured that the analyst did
the proper tests and that the analyst’s interpretation of the test results
was correct; ensured that the results coincided with the conclusion in
the report; agreed with a reasonable degree of scientific certainty with
the examinations and results of the report; and signed the report.
Id. at 310. The court concluded that Bullcoming did not clearly establish that the
Confrontation Clause is violated when a testimonial laboratory report is introduced
through the in-court testimony of a technical reviewer who both “signed the report
and was more involved in the testing and report preparation than was the witness
in Bullcoming.” Id.
While recognizing that Justice Sotomayor’s concurring opinion in Bullcoming
is not clearly established federal law, the Fifth Circuit found that her opinion
“provides support for [the] conclusion that Bullcoming does not clearly establish
what degree of involvement with the forensic testing, beyond what was present in
Bullcoming, is required of a testifying witness.” Id. at 308 n.6; see Bullcoming, 564
U.S. at 671 (Sotomayor, J., concurring in part) (“We need not address what degree
of involvement is sufficient because here [the testifying witness] had no involvement
whatsoever in the relevant test and report.”). The court noted that “[w]idespread

16

disagreement among courts regarding Bullcoming further supports the conclusion
that the Supreme Court has not clearly established what degree of involvement
with the forensic testing is required of an in-court witness.” Grim, 816 F.3d at 309.
Because the law regarding the scope of Bullcoming was not clearly established, the
Fifth Circuit concluded that the decision of the Supreme Court of Mississippi was
neither contrary to nor an unreasonable application of clearly established federal
law, and therefore Grim was not entitled to habeas relief. Id. at 310.
The only significant factual difference between Grim and the instant case is
that the weight of the substance was not at issue in the prosecution of Grim,
whereas in Petitioner’s case, the testimonial laboratory report concerned not only
the nature of the substance but also its weight. Am. Pet. [5] at 6. The testifying
witnesses in both cases were supervisors who performed procedural checks,
conducted technical reviews, and had the same level of involvement in the analyses
and preparation of the reports. Compare Jenkins, 102 So. 3d at 1069, with Grim,
816 F.3d at 310. Because Gross was “a technical reviewer who signed the report
and was more involved in the testing and report preparation than was the witness
in Bullcoming,” the Court concludes that the Fifth Circuit’s analysis in Grim
applies to both the testimony concerning the nature of the controlled substance as
well as the testimony concerning its weight, and that the facts of the case are much
closer to Grim than to those in Bullcoming. Grim, 816 F.3d at 310.

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III. CONCLUSION
After conducting a de novo review of the record in light of Petitioner’s
Objections [25] and Supplemental Brief [32], the Court is of the opinion that the
facts of Grim v. Fisher are sufficiently similar to the instant case such that
Petitioner is not entitled to habeas relief in light of the Fifth Circuit’s resolution of
that appeal. 816 F.3d 296 (5th Cir. 2016); see also Williams v. Vannoy, No. 1431067, 2016 WL 5376202, at *1 (5th Cir. Sept. 26, 2016) (finding that the
Confrontation Clause was not violated when “the supervisor of the DNA laboratory
testified as an expert who had a personal connection to the scientific testing and
actively reviewed the results of the forensic analyst’s testing and signed off on the
report”).
The Court agrees with the Magistrate Judge that the facts of Bullcoming are
materially distinguishable from the instant case, in which the testifying supervisor
Gross reviewed the testing analyst’s work, signed the laboratory report himself, and
formed independent conclusions based on his own knowledge of the laboratory’s
procedures and his extensive experience as a drug analyst. See R. & R. [24] at 7.
Because the law is not clearly established as to whether the degree of involvement
between the testifying witness in this case, Gross, and the forensic analysis
introduced at Petitioner’s trial violates the Confrontation Clause, the Court finds
that the decision of the Supreme Court of Mississippi was not contrary to clearly
established federal law, nor was its application of the law objectively unreasonable.

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Petitioner’s Objections [25] will be overruled and the Court will adopt the
Magistrate Judge’s recommendation that habeas relief be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Petitioner’s
Objections [25] to the Report and Recommendations [24] of Magistrate Judge
Robert H. Walker are OVERRULED, and the Report and Recommendations [24] is
ADOPTED as the finding of the Court, along with the additional findings made
herein.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Petitioner Robert
Jenkins’ Amended Petition for Writ of Habeas Corpus [5] filed pursuant to 28
U.S.C. § 2254 is DENIED, and this case will be dismissed with prejudice. A
separate judgment will be entered in accordance with this Order as required by
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 3rd day of January, 2017.

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

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