Jenkins v. State (Ex parte Jenkins)

• Decision Date: 21 September 2012
• Docket Number: 1101410.
• Citation: 105 So.3d 1250
• Parties: Ex parte Mark Allen JENKINS. (In re Mark Allen Jenkins v. State of Alabama).
• Court: Alabama Supreme Court

105 So.3d 1250

Ex parte Mark Allen JENKINS.(In re Mark Allen Jenkins

v.State of Alabama).

1101410.

Supreme Court of Alabama.

Sept. 21, 2012.

Ty Alper and Katherine R. Weisburd, University of California, Berkeley School of Law, Berkeley, CA; and Joseph T. Flood of Sheldon & Flood, P.L.C., Fairfax, VA, for petitioner.

Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent.

BOLIN, Justice.

Mark Allen Jenkins petitioned this Court for a writ of certiorari, raising a number of grounds for certiorari review. This Court granted the petition for the limited purpose of determining whether the Court of Criminal Appeals' decision affirming the trial court's verbatim adoption of the State's proposed order dismissing Jenkins's petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., conflicts with this Court's decisions in Ex parte Ingram, 51 So.3d 1119 (Ala.2010), and Ex parte Scott, [Ms. 1091275, March 18, 2011] ––– So.3d –––– (Ala.2011).¹

Facts and Procedural History

Mark Allen Jenkins was convicted in March 1991 of two counts of murder made capital because the murder was committed during the course of a robbery and during the course of 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 trial court accepted the jury's recommendation and sentenced Jenkins to death for the capital-murder convictions. Judge H.E. Holladay presided over the trial.

On February 28, 1992, the Court of Criminal Appeals affirmed Jenkins's convictions and sentences. See Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992). On May 28, 1993, this Court affirmed the Court of Criminal Appeals' decision. 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 filed his first Rule 32 petition in the St. Clair Circuit Court, in which he asserted numerous claims for relief. 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 a juror, L.V., failed to disclose during voir dire that her nephew and his wife had been murder victims. The Rule 32 postconviction proceeding was assigned to St. Clair Circuit Judge William Hereford, who conducted the first day of a three-day evidentiary hearing on December 10, 1996. On January 18, 1997, after the first day of the evidentiary hearing but before the final day 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. The trial court conducted the remainder of the evidentiary hearing on January 20 and 21, 1997.

On December 31, 1997, the trial court entered an order denying relief on the claims contained in Jenkins's Rule 32 petition. The trial court concluded, in part, that Jenkins's claim 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.²

On February 27, 2004, the Court of Criminal Appeals affirmed the trial court's denial of Jenkins's Rule 32 petition, holding 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 the original petition. See Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). On April 8, 2005, this Court reversed the Court of Criminal Appeals' judgment “insofar as [that court] held that Jenkins's claim of juror misconduct, presented for the first time in his amended petition, could not be considered because it did not relate back to his original petition.” Ex parte Jenkins, 972 So.2d 159, 165 (Ala.2005). This Court remanded the case for further proceedings.

On November 23, 2005, the Court of Criminal Appeals again affirmed the trial court's order denying relief on Jenkins's juror-misconduct claim. Jenkins v. State, 972 So.2d 165 (Ala.Crim.App.2005). In affirming the trial court's decision, that court noted that Jenkins had 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. 972 So.2d at 167–68. On May 18, 2007, this Court denied Jenkins's petition for a writ of certiorari.

On May 15, 2008, Jenkins filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Alabama. The federal habeas corpus petition included Jenkins's juror-misconduct claim.

Subsequent to Jenkins's filing his habeas corpus petition, this Court issued its decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). In Ex parte Burgess, this Court reviewed the Court of Criminal Appeals' affirmance of the trial court's summary dismissal of Burgess's Rule 32 petition, in which he raised a juror-misconduct claim, on the basis that that claim could have been, but was not, raised at trial or on appeal. SeeRule 32.2(a)(3) and (a)(5). In reversing the Court of Criminal Appeals' judgment, this Court reaffirmed the principle established in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), and Ex parte Pierce, 851 So.2d 606 (Ala.2000), 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 of 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))

On October 1, 2008,³ Jenkins filed a second Rule 32 petition based on the authority of Ex parte Burgess in which he realleged his juror-misconduct claim. In his Rule 32 petition, Jenkins “incorporate [d] ... the record of the [previous] evidentiary hearing conducted” on his juror-misconduct claim. Jenkins's second Rule 32 petition was assigned to yet another circuit judge—Judge James E. Hill, Jr.

On October 31, 2008, the State answered the petition and moved to dismiss it, arguing that the petition was procedurally barred pursuant to Rules 32.2(b) and 32.2(c), Ala. R.Crim. P., and that, based on the previous Rule 32 hearing, Jenkins's juror-misconduct claim was without merit. The State further argued that because Jenkins's claim was procedurally barred and was without merit, it should be dismissed pursuant to Rule 32.7(d), Ala. R.Crim. P.

On November 5, 2008, Jenkins moved the trial court for time to file a reply to the State's answer and motion to dismiss. On November 21, 2008, before the trial court had ruled on Jenkins's request, the State submitted to the trial court a proposed order denying Jenkins's second Rule 32 petition. The State's proposed order contained numerous citations to the record on direct appeal from Jenkins's trial in 1991, as well as to the record on appeal following Jenkins's initial postconviction proceedings in 1996 and 1997. The proposed order purported to make factual and credibility findings regarding witnesses whom Judge Hill had never seen testify and also contained a detailed analysis of the voir dire proceedings at trial.

Jenkins states that the proposed order was filed by the State using first-class mail on Friday, November 21, 2008. Thus, he surmises that, given that the courthouse would be closed for the weekend, the earliest the trial court or a member of its staff could have seen the proposed order would have been the following Monday, November 24, 2008. Jenkins notes that the State's proposed order was mailed to the St. Clair Circuit Court clerk's office in Ashville. However, he states that “upon information and belief” Judge Hill was not sitting in Ashville on Monday November 24, 2008, but was instead sitting in Pell City on that date. On November 25, 2008, Judge Hill was sitting in the Ashville courthouse; the trial court signed the State's proposed order that day, denying all requested relief without making any changes to it.

Jenkins states that the trial court's records are kept in the circuit court clerk's office and that a log is kept of when court files are “checked out” by court personnel. Jenkins contends that before signing the proposed order, neither Judge Hill nor any member of his staff “checked out” from the clerk's office his court files containing the transcripts and pleadings from his trial and the first Rule 32 proceedings.

On December 3, 2008—after signing the proposed order dismissing Jenkins's second Rule 32 petition—the trial court granted Jenkins's previously filed motion for time to reply to the State's answer and motion to dismiss. Although the trial court signed the proposed order denying Jenkins's second Rule 32 petition on November 25, 2008, Jenkins did not receive notice of the trial court's action until December 23, 2008. In the meantime, Jenkins, on December 15, 2008, filed his response to the State's answer and motion to dismiss, a motion for leave to file an amended petition for relief from his convictions and sentences, and a motion to set a briefing schedule. Jenkins filed an “Emergency Motion for Reconsideration” once he received notice that the trial court had signed the State's proposed order denying...