Jenkins v. State

• Decision Date: 26 August 2011
• Docket Number: CR–08–0490.
• Citation: 105 So.3d 1234
• Parties: Mark Allen JENKINS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

105 So.3d 1234

Mark Allen JENKINS

v.STATE of Alabama.

CR–08–0490.

Court of Criminal Appeals of Alabama.

Aug. 26, 2011.

Ty Alper and Katherine R. Weisburd, Berkeley, California; and Joseph T. Flood, Fairfax, Virginia, for appellant.

Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.

On Application for Rehearing^*

WINDOM, Judge.

This Court's opinion of December 17, 2010, is withdrawn, and the following opinion is substituted therefor.

Mark Allen Jenkins appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his March 1991 convictions for two counts of murder made capital because the murder was committed during the course of a robbery and a kidnapping, see§§ 13A–5–40(a)(2) and 13A–5–40(a)(1), Ala.Code 1975. By a vote of 10–2, the jury recommended that Jenkins be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Jenkins to death for his capital-murder convictions.

On February 28, 1992, this Court affirmed Jenkins's convictions and sentence. ¹See 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. See Ex parte Jenkins, 627 So.2d 1054 (Ala.1993). On March 28, 1994, the United States Supreme Court denied Jenkins's petition for a writ of certiorari. See Jenkins v. Alabama, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994).

On May 26, 1995, Jenkins, through counsel, filed his first Rule 32 petition in the St. Clair Circuit Court in which he raised numerous claims for relief.² On November 26, 1996, Jenkins filed an amendment to his Rule 32 petition in which he alleged, among other things, that he was entitled to a new trial because Juror L.V. failed to disclose during voir dire that her nephew and his wife had been murdered.³ (1st R. 32 C. at 257–59.) On December 10, 1996, the circuit court conducted the first day of an evidentiary hearing on Jenkins's amended Rule 32 petition and postponed the remainder of the hearing until a later date. On January 18, 1997, after the first day of the evidentiary hearing but before the two final days of the hearing, the State filed a response to Jenkins's amended Rule 32 petition in which it asserted, among other things, that Jenkins's juror-misconduct claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on direct appeal.⁴ Thereafter, on January 20 and 21, 1997, the circuit court conducted the remainder of the evidentiary hearing, during which Jenkins presented the testimony of one of his two trial attorneys.⁵

On December 31, 1997, the circuit court issued a detailed order denying relief on the claims contained in Jenkins's Rule 32 petition. (1st R. 32 C. at 267–346.) In its order, the circuit court determined, in relevant part, that Jenkins's claim contending that Juror L.V.'s failure to disclose during voir dire that her nephew and his wife had been murdered was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because this claim could have been, but was not, raised at trial or on direct appeal. (1st R. 32 C. at 275, 282.)

On February 27, 2004, this Court affirmed the circuit court's denial of Jenkins's Rule 32 petition. See Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). Specifically, this Court held that Jenkins's juror-misconduct claim was barred pursuant to Rule 32.2(c), Ala. R.Crim. P., because it was raised in an untimely amendment to the original Rule 32 petition and did not relate back to any claim raised in the original petition. Id. at 120–21. On April 8, 2005, the Alabama Supreme Court reversed this Court's holding that Jenkins's juror-misconduct claim was time-barred and remanded the cause to this Court for further proceedings. See Ex parte Jenkins, 972 So.2d 159 (Ala.2005).

On November 23, 2005, this Court again affirmed the circuit court's order denying relief on Jenkins's claim relating to juror misconduct. See Jenkins v. State, 972 So.2d 165 (Ala.Crim.App.2005). In affirming the circuit court's decision, this Court noted that Jenkins failed to present any evidence during the evidentiary hearing indicating that his juror-misconduct claim was not known and could not have been discovered in time to raise it at trial or on appeal. Id. at 167–68. Specifically, this Court explained:

“Jenkins submitted no evidence indicating why this claim was raised in the Rule 32 petition and not in earlier proceedings. Jenkins's attorney offered no explanation at the Rule 32 hearing. The only reference in the record concerning the lateness of raising this claim is the following statement contained in a response filed by Jenkins: ‘After filing his petition for postconviction relief but prior to the evidentiary hearing in this case, Mr. Jenkins obtained new evidence suggesting that [L.V.] had a close relative who had been murdered.’ (Supplemental record, vol. III, p. 402.)”

Id. at 167. After noting that Jenkins failed to present any evidence indicating whether trial counsel knew of and thus could have raised the juror-misconduct claim earlier, this Court, applying the Alabama Supreme Court's holding in Ex parte Pierce, 851 So.2d 606 (Ala.2000), held that the claim was procedurally barred because it could have been, but was not, raised at trial or on appeal. Jenkins v. State, 972 So.2d at 168.See also Ex parte Pierce, 851 So.2d at 614 (explaining that “Rule[s] 32.2(a)(3) and (5) would preclude [a juror-misconduct] claim if it could have been raised at trial or on appeal ... [and to overcome the procedural bars contained in Rule 32.2(a), Ala. R.Crim. P., the petitioner must] show that his claim could not have been raised at trial or on direct appeal”). On May 18, 2007, the Alabama Supreme Court entered an order denying Jenkins's petition for a writ of certiorari.

On May 15, 2008, Jenkins filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama. After Jenkins filed his federal habeas corpus petition, the Alabama Supreme Court issued its decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). In Burgess, the Alabama Supreme Court reviewed this Court's affirmance of the circuit court's summary dismissal of Burgess's Rule 32 petition in which he raised a juror-misconduct claim. Id. at 751. Specifically, the Alabama Supreme Court reviewed whether this Court had properly held that Burgess's juror-misconduct claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. Id.SeeRule 32.2(a)(3) and (a)(5) (“A petitioner will not be given relief under [Rule 32] based upon any ground: ... 3) [w]hich could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or ... 5) [w]hich could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”).

In Ex parte Burgess, the Alabama Supreme Court applied this Court's decision in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), and its own decision in Ex parte Pierce, 851 So.2d 606 (Ala.2000), and reaffirmed the principle established by those cases that a Rule 32 petitioner raising juror-misconduct claim relating to a juror's failure to disclose information during voir dire may overcome the procedural bars contained in Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., if that petitioner “establishe[s] that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” Ex parte Burgess, 21 So.3d at 751 (quoting Ex parte Pierce, 851 So.2d at 616 (emphasis added)). The Alabama Supreme Court noted that Burgess had alleged in his Rule 32 petition that the juror-misconduct claim was not discovered until it was too late to raise the claim at trial or on appeal. Id. The Court further noted that it was unreasonable to require trial or appellate counsel to blindly investigate possible juror-misconduct claims and that Burgess had alleged in his petition that he had no reason to suspect any juror misconduct. Id. at 754–55. Because Burgess had alleged facts indicating that his counsel was unaware of the juror-misconduct claim until it was too late to raise the claim at trial or on appeal and had alleged facts indicating that “nothing occurred during the trial or appears in the record that could have alerted him or his counsel to the [alleged juror misconduct],” the Alabama Supreme Court held that this Court erroneously determined, at the pleading stage, that Burgess's juror-misconduct claim was procedurally barred pursuant to Rule 32.2(a)(3) and (a)(5). Id. at 751–55. Therefore, the Alabama Supreme Court reversed the summary dismissal of Burgess's Rule 32 petition. Id. at 755.

On October 2, 2008, Jenkins moved the federal district court to stay his habeas proceedings to allow him to file another Rule 32 petition reasserting his juror-misconduct claim. Specifically, Jenkins sought a stay in federal court to allow him to pursue his juror-misconduct claim pursuant to the Alabama Supreme Court's decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). On November 12, 2008, the federal district court granted Jenkins's motion to stay his habeas proceedings.

On October 1, 2008, Jenkins filed a second Rule 32 petition in which he re-alleged that Juror L.V.'s failure to disclose during voir dire that her nephew and his wife had been murdered 20 years before Jenkins's trial violated his right to a fair trial. In his Rule 32 petition, Jenkins “incorporate[d] ... the record of the [previous] evidentiary hearing conducted” on his juror-misconduct claim. (2d R. 32 C. at 6.) On October 31, 2008, the State filed an answer and motion to...