Jenkins v. Allen, Case no. 4:08-cv-00869-VEH

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Decision Date: 31 August 2016
• Docket Number: Case no. 4:08-cv-00869-VEH
• Parties: MARK ALLEN JENKINS, Petitioner, v. RICHARD ALLEN, Commissioner, Alabama Department of Corrections, Respondent.

MARK ALLEN JENKINS, Petitioner,
v.
RICHARD ALLEN, Commissioner, Alabama Department of Corrections, Respondent.

Case no. 4:08-cv-00869-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION

August 31, 2016

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

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a. The "Cause and Prejudice" Standard .............. 24

i. "Cause" ............................... 24
ii. "Prejudice" ............................ 26

b. The "Fundamental Miscarriage of Justice" Standard ........................................... 26

C. 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

Page 3

2. The Prejudice Prong ................................ 48
3. Deference Accorded State Court Findings of Historical Fact, When Evaluating Ineffective Assistance of Counsel Claims ........................................... 50

V. 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. Evidence relating to Jenkins's childhood and background ................................. 105
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. Failure to request a continuance .................. 132

2. Counsel's Deficient Performance Deprived Mr. Jenkins of the Effective Assistance of Counsel during the Sentencing Hearing ......................................... 134

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3. Trial Counsel Failed To Object and Take Action To Ensure Appellate Review of the Prosecutor's Discriminatory Use of Peremptory Challenges ............................. 138

a. Failure to object to the prosecutor's discriminatory use of peremptory challenges .................... 139
b. Failure to take action to insure appellate review of the prosecutor's discriminatory use of peremptory challenges .................................. 150
c. Prejudice ................................... 178

4. 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

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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. The Trial Court's Failure to Instruct the Jury on Applicable Lesser-Included Offenses ........................... 239
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. The Trial Court's Reference to the Jury's Verdict as "Merely Advisory" Was Improper and Prejudicial ......... 276

F. 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

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c. The prosecutor repeatedly expressed personal opinions and vouched for the quality of the prosecution's case and witnesses ............ 294
d. The prosecutor injected unsworn and inflammatory testimony that was not admitted into evidence, and had been excluded ........ 297
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 ......................... 299

2. 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

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I. Mr. Jenkins Was Deprived of a Fair Trial by the State's Racially Discriminatory Use of Peremptory Challenges ....... 324

J. The Trial Court's Wholesale Adoption of the State's Proposed Findings of Fact Was Unreasonable ....................... 332

K. The Manner of Execution Used by the State of Alabama Constitutes Cruel and Unusual Punishment ................. 338

VI. CONCLUSION ............................................ 340

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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,

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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...