Jenkins v. Comm'r

• Decision Date: 29 June 2020
• Docket Number: No. 17-12524,17-12524
• Parties: Mark Allen JENKINS, Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

963 F.3d 1248

Mark Allen JENKINS, Petitioner-Appellant,

v.COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 17-12524

United States Court of Appeals, Eleventh Circuit.

June 29, 2020

Joseph T. Flood, Sheldon, Flood and Haywood, PLC, Fairfax, VA, for Petitioner-Appellant

Henry M. Johnson, James Clayton Crenshaw, Michael A. Nunnelley, Alabama Attorney General's Office, Montgomery, AL, for Respondent-Appellee

Brendan B. Gants, Elaine Goldenberg, Munger Tolles & Olson, LLP, Washington, DC, for Amici Curiae Alabama Disabilities Advocacy Program, Arc of Alabama, Arc of the United States

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.

BRANCH, Circuit Judge:

We sua sponte vacate our previous opinion and substitute the following in lieu thereof.¹

* * *

Mark Allen Jenkins, an Alabama prisoner sentenced to death for the 1989 murder of Tammy Ruth Hogeland, appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Before us are Jenkins's arguments that he received ineffective assistance of counsel during the penalty phase of his trial and that he is intellectually disabled and therefore ineligible for the death penalty. After careful consideration, and with the benefit of oral argument, we affirm the denial of Jenkins's habeas petition on both grounds.

I. BACKGROUND

A. The Crime and Arrest

We summarize the following background narrative from opinions of the Alabama Court of Criminal Appeals and our own review of the record. See Jenkins v. State , 627 So. 2d 1034, 1037–40 (Ala. Ct. Crim. App. 1992) ; Jenkins v. State , 972 So. 2d 111, 119–20 (Ala. Ct. Crim. App. 2004). The events leading up to the murder began the evening of April 17, 1989. Jenkins was at the home of his acquaintance Christine Nicholas. He had met her several months earlier at the Omelet Shoppe restaurant where she worked. Jenkins was very intoxicated and tried to seduce her. When she resisted, Jenkins got "real mad" and asked her several times what she would do if someone came up from behind her and grabbed her.

At around 1 a.m., Jenkins and Nicholas drove to the Riverchase Omelet Shoppe. Jenkins went inside and talked with one of the waitresses, Frieda Vines. The manager, Douglas Thrash, recognized Jenkins as a regular customer who knew all of the waitresses. Thrash overheard part of Jenkins's conversation with Vines and heard mention of the Omelet Shoppe location near the Birmingham Airport. Jenkins and Nicholas then returned to Nicholas's home. Around 2 a.m., Nicholas's mother asked Jenkins to leave. He did so, falling down some steps and ramming his car into another vehicle in the process.

Meanwhile, 23-year-old Tammy Hogeland was making her way to work at the Omelet Shoppe. Her sister Wendy, along with Tammy's young son, picked Tammy up from her college classes and drove her to the Riverchase Omelet Shoppe a little after 9:30 p.m. Sometime after 10:00, Tammy was sent to work at the airport Omelet Shoppe on Tenth Avenue, since that location was unexpectedly shorthanded. Tammy was wearing her watch, a necklace with the words "special sister," her class ring, and her diamond engagement ring. Tammy was working as a cook that night and was wearing a blue apron, black pants, a white shirt, and white shoes. She and Sarah Harris were the only employees working at the airport Omelet Shoppe that night.

At about 2 a.m. on April 18, Harris saw Jenkins—whom she did not know—drive up in a red sports car. His arrival was memorable to Harris because the car nearly jumped the curb and crashed through the restaurant's glass wall. Jenkins got out of the car and came into the restaurant, appearing to be intoxicated. He walked over to Hogeland and began talking to her. Harris later saw Jenkins and Hogeland drive away together in the red sports car. That was the last time anyone who knew Hogeland ever saw her. Hogeland left behind her cigarettes, lighter, purse, and paycheck. She left without telling anyone, which she had never done before. Although Harris saw them drive off, she could not later say whether Hogeland left with Jenkins willingly or was instead abducted.

At around 5 a.m. that morning, Bobby and Geraldine Coe had stopped to buy gas at a Chevron station on I-59 northeast of Birmingham when they saw Jenkins drive up in the red sports car. The Coes noticed a female who appeared to be "passed out" in the front passenger seat, but they could not say whether she was alive or dead.

While Bobby Coe was pumping gas, Jenkins asked him for some cigarettes and said, "Looks like it's been a long night and it looks like it's going to be a long day." Jenkins then said "God bless you" before asking directions to I-459. Coe gave him directions and got back in his car. As Coe pulled out onto the interstate, he saw Jenkins follow him in the red sports car. Coe then saw the car flash its lights, slow down, and pull to the side of the road between mile markers 151 and 152.

At 8 a.m., Wendy Hogeland learned that Tammy was not at the restaurant, and their mother called the police. Meanwhile, Jenkins went to the home of Steve Musser, who noticed that he was wearing the same clothes as the day before. Jenkins told Musser that his car had been stolen the night before and asked him if he would say that he had been with him all night. Musser refused. Christine Nicholas also saw Jenkins in a grocery store that morning. He was looking at a newspaper, making a phone call, and attempting to sell his Buick. Nicholas loaned him $4 for gas. At around 10 o'clock that morning, Jenkins sold his car to Michael Brooks, a mechanic at a local Chevron station. Jenkins had explained that he needed the money so he could visit his sick mother in California. Another mechanic at the service station drove Jenkins to the Greyhound bus station later that morning.

Jenkins awoke the next day on the Greyhound bus in Houston and was ejected from the bus because his fare was used up. He then hitchhiked from Houston to Phoenix, then to San Diego and Los Angeles. Jenkins was first identified as a suspect in Hogeland's disappearance by Officer Mike Weems of the Hoover Police Department on April 19. Weems ate dinner at the Riverchase Omelet Shoppe just about every day and had talked with Hogeland just as often. He also knew Jenkins from the restaurant. Weems learned of Hogeland's disappearance from the other waitresses. Remembering how Jenkins often talked to Hogeland and passed her notes,² he gave Jenkins's name to the missing persons investigator. The investigator also learned that a red Mazda RX-7 sports car, which had been reported stolen from the service station where Jenkins worked, had been recovered on I-459.

The afternoon of April 21, a truck driver who had happened to stop on I-59 near mile marker 151 discovered Hogeland's body off the side of the road. She was naked, wearing only a watch, and was so badly decomposed that the body had to be identified by dental records. From the fractured hyoid bone

, it was determined that she was manually strangled to death. Also found at the scene were Hogeland's apron, shoes, bra, panties, pants, and hair net, as well as some beer cans, a Mazda RX-7 owner's manual, and other items later determined to have come from the red Mazda. Her necklace and rings were never found.

Alabama authorities issued a warrant for Jenkins's arrest and also obtained a federal fugitive warrant. An FBI agent arrested Jenkins on May 1 in front of his uncle's house in Wilmington, California. Jenkins's uncle later gave the police three bags of Jenkins's personal effects. Fibers recovered from Hogeland's body and clothing matched those of the Mazda, and hairs matching Hogeland's were found in the Mazda. Similarly, fibers from Jenkins's clothing placed him in the Mazda, and fibers of his jeans were found on Hogeland's apron. A bootprint near Hogeland's body matched a combat boot from among the belongings Jenkins's uncle gave to the police, and Jenkins's roommate said the boots looked just like those that Jenkins wore.

A business card like those that had been in the Mazda's glove box, belonging to an owner of the Mazda, was recovered from Jenkins's wallet after his arrest in California. Later, Jenkins's cellmate in the Alabama jail reported that Jenkins told him "he had done the crime" and was worried that the couple from the gas station would identify him or that the police would find his fingerprint on a beer can at the scene. A St. Clair County grand jury indicted Jenkins for capital murder.

B. The Trial and Sentencing

Jenkins was represented at trial in 1991 by attorneys Douglas Scofield and Stan Downey. Scofield, the lead attorney, had been practicing criminal defense in Birmingham since 1984 but had never before tried a capital murder case. Jenkins's landlord and his grandmother had arranged the referral and representation before the court appointed him. Scofield agreed to the appointment on the condition that a St. Clair County lawyer also be appointed. That lawyer was Downey, who had more experience than Scofield but whose capital experience was limited to one case that had not gone to trial. The two attorneys had agreed that Downey would be responsible for jury selection, but Scofield eventually took over during the voir dire. Per their agreement, Scofield was responsible for the guilt-phase trial, although Downey participated by interviewing Jenkins several times. Scofield also met with Jenkins around a dozen times. Jenkins had told him about his background and childhood, including the fact that he had had a difficult childhood and had lived on the streets since age 11.

Throughout the weeklong trial, Scofield pursued an outright acquittal. In particular, he challenged Harris's identification of Jenkins as the man who drove away with Hogeland, and he challenged the medical examiner's opinions about the time and cause of Hogeland's death. In his closing argument, Scofield took a wide-ranging approach to undermining the State's wholly...