Jenkins v. State

• Decision Date: 27 February 2004
• Docket Number: CR-97-0864.
• Citation: 972 So.2d 111
• Parties: Mark Allen JENKINS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

972 So.2d 111

Mark Allen JENKINS v.STATE of Alabama.

CR-97-0864.

Court of Criminal Appeals of Alabama.

February 27, 2004.

Rehearing Denied May 21, 2004.

Joseph T. Flood, Manassas, Virginia, for appellant.

Troy King and William H. Pryor, Jr., attys. gen.; and A. Vernon Barnett IV, asst. atty. gen., for appellee.

PER CURIAM.

Mark Allen Jenkins, currently an inmate on death-row at Holman Penitentiary, appeals the circuit court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

In March 1991, Jenkins was convicted of two counts of capital murder for murdering Tammy Hogeland during the course of a kidnapping and a robbery.The jury, by a vote of 10 to 2, recommended that Jenkins be sentenced to death.The trial court sentenced Jenkins to death.Jenkins's conviction and death sentence were affirmed on direct appeal.SeeJenkins v. State,627 So.2d 1034(Ala.Crim.App.1992), aff'd, 627 So.2d 1054(Ala.1993).This Court issued its certificate of judgment on October 28, 1993.SeeRule 41, Ala. R.App.P.

In May 1995, Jenkins filed a petition for post-conviction relief pursuant to Rule 32, Ala.R.Crim.P.An amended petition was filed in April 1997.After an evidentiary hearing, the circuit court denied Jenkins's Rule 32 petition in a thorough 79-page order.This appeal followed.

At trial, the State's evidence tended to show that on April 21, 1989, a truck driver discovered Tammy Hogeland's nude body on the side of a highway near Birmingham, Alabama.Forensic tests showed that Hogeland died as a result of manual strangulation.Hogeland was last seen on April 18, 1989, at the Tenth Avenue Omelet Shoppe restaurant in Birmingham where she was working as a waitress.Some of the jewelry Hogeland had been wearing when she was last seen was missing when her body was discovered.¹

At about 2:00 a.m. on April 18, 1989, a witness saw a red sports car, driven by Jenkins, enter the parking lot of the Omelet Shoppe.Sara Harris, an employee of the Omelet Shoppe, testified that she saw the victim drive off with Jenkins.Later that morning two witnesses saw Jenkins at a gasoline service station off I-59.They said that a female was also in the car and that she appeared to be "passed out."These two witnesses left the service station and Jenkins also left the station and followed them on I-59.They saw Jenkins pull off of I-59 in an area near where Hogeland's body was later discovered.

Standard of Review

When reviewing a circuit court's ruling on a petition for post-conviction relief, we apply an abuse of discretion standard."If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.SeeRoberts v. State,516 So.2d 936(Ala.Cr.App.1987)."Reed v. State,748 So.2d 231, 233(Ala.Crim.App.1999).

This Court applied a plain-error standard of review when reviewing Jenkins's conviction and sentence on direct appeal.However, the plain-error standard of review is not applied in post-conviction proceedings challenging a death sentence.Hill v. State,695 So.2d 1223(Ala.Crim.App.1997);Neelley v. State,642 So.2d 494(Ala.Crim.App.1993), writ quashed, 642 So.2d 510(Ala.1994).

Last, this proceeding was initiated at Jenkins's direction.According to Rule 32.3, Ala.R.Crim.P., Jenkins has the "burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

I.

Jenkins first argues that he was deprived of his right to due process, his right to select an impartial jury, and his right to a fair trial when members of the venire failed to answer critical questions during voir dire examination.

In October 1993, this Court issued the certificate of judgment for Jenkins's direct appeal.Jenkins's Rule 32 petition was filed in May 1995.This juror-misconduct claim was not raised in Jenkins's original Rule 32 petition; however, it was raised in an amended petition filed in April 1997 — more than three years after this Court issued the certificate of judgment for Jenkins's direct appeal.

When Jenkins filed his post-conviction petition, Rule 32.2(c), Ala.R.Crim.P., provided that a petitioner had two years from this Court's issuance of the certificate of judgment in which to file a Rule 32 petition.²Jenkins's original petition was filed within two years of the issuance of the certificate of judgment.However, the juror-misconduct claim was not raised until the amended petition was filed in April 1997 — well past the two-year limitations period.

Nonetheless, this claim would be considered timely if it relates back to a claim raised in the original timely filed Rule 32 petition.However, the May 1995 petition had no claim even remotely related to the veniremembers' failure to truthfully answer questions during voir dire examination.SeeCharest v. State,854 So.2d 1102(Ala.Crim.App.2002).

The limitations period in Rule 32.2(c), Ala.R.Crim.P., is mandatory and jurisdictional, Williams v. State,783 So.2d 135, 137(Ala.Crim.App.2000), and deprives a court from considering a nonjurisdictional claim filed beyond that period.Therefore, this constitutional claim is barred by the expiration of the limitations period.SeeRule 32.2, Ala.R.Crim.P.³

II.

Jenkins next argues that he was deprived of the effective assistance of counsel at all stages of his trial and on appeal.

When reviewing a claim of ineffective assistance of counselwe apply the two-pronged standard of review first announced by the United States Supreme Court in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).The petitioner must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of his counsel's performance.

"Judicial scrutiny of counsel's performance must be highly deferential.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.Cf.Engle v. Isaac,456 U.S. 107, 133-34(1982).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.'SeeMichel v. Louisiana, [350 U.S. 91], at 101[(1955)].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."

466 U.S. at 689, 104 S.Ct. 2052.As the United States Supreme Court further stated:

"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."

466 U.S. at 690-91, 104 S.Ct. 2052.

During trial Jenkins was represented by attorneys Douglas Scofield and Stan Downey.Scofield testified at the postconviction proceedings; Downey did not.Scofield said that he was responsible for preparing for the guilt phase of the trial and Downey was responsible for preparing for the penalty phase.Scofield also represented Jenkins on appeal.Jenkins makes the following claims related to his counsel's performance.

A.

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.⁴

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.⁵

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'...