VIRGINIA EMERSON HOPKINS, District Judge.
The petitioner, Mark Allen Jenkins ("Jenkins"), is an Alabama state inmate sentenced to death. Before the court is Jenkins's motion for an evidentiary hearing on the claim that he is mentally retarded under Atkins v. Virginia, 536 U.S. 304 (2002). (Doc. 49). For the following reasons, the petitioner's Atkins claim is without merit, and he is not entitled to an evidentiary hearing on this claim.
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).
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, Tabs 28, 30, 32). The Alabama Court of Criminal Appeals affirmed Jenkins's convictions and sentence on February 28, 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 States Supreme Court denied Jenkins's petition for a writ of certiorari. Jenkins v. Alabama, 511 U.S. 1012 (1994).
On May 26, 1995, Jenkins, through counsel,
Jenkins appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals, which affirmed the trial court on February 27, 2004. In affirming, the Court of Criminal Appeals specifically found that Jenkins's death sentence did not violate Atkins. Jenkins v. State, 972 So.2d 111, 154-55 (Ala. Crim. App. 2004). The Alabama Court of Criminal Appeals denied Jenkins's application for rehearing on May 21, 2004. Jenkins v. State, 972 So.2d 111 (Ala. Crim. App. 2004). On April 8, 2005, the Alabama Supreme Court affirmed the Court of Criminal Appeals' affirmance of the trial court's denial of the Atkins claim.
On August 11, 2008, Jenkins, through counsel, filed an amended § 2254 petition in this court. (Doc. 12). The respondent filed an answer to the amended petition on October 29, 2008. (Doc. 20). On November 12, 2008, the action was stayed to allow the petitioner to pursue a second state Rule 32 petition based upon Ex Parte Burgess, 21 So.3d 746 (Ala. 2008). (Doc. 25). On June 20, 2013, Jenkins filed an amended petition raising his newly exhausted juror misconduct claim. (Doc. 36). The respondent filed an answer to the amendment on September 3, 2013. (Doc. 40). Jenkins filed a reply brief on November 14, 2013. (Doc. 48).
On November 14, 2013, Jenkins filed a Motion for an Evidentiary Hearing on his Atkins claim. (Doc. 49). The respondent filed an opposition to the motion on September 22, 2014. (Doc. 51). On October 8, 2014, Jenkins filed a reply to the respondent's opposition. (Doc. 52). The matter is now ripe for resolution.
In his motion, Jenkins requests that the court "issue a writ of habeas corpus on his Atkins claim" or, in the alternative, hold an evidentiary hearing allowing him "to present evidence in support of his claim that he is mentally retarded under Atkins v. Virginia." (Doc. 49 at 11). Jenkins argues "the evidence introduced during the Rule 32 proceedings in support of his claims of ineffective assistance of counsel conclusively establishes his mental retardation." (Id. at 5-6). Jenkins only requests an evidentiary hearing to the extent this court finds the record insufficient to grant relief, "as he was diligent in requesting a hearing in state court." (Id. at 6).
Jenkins's trial took place in 1991, more than a decade prior to the Atkins decision in June 2002. Jenkins made no argument concerning his mental capacity at trial. However, in his amended Rule 32 petition, filed May 25, 1995, Jenkins argued trial counsel was ineffective for failing to investigate and present mitigating evidence showing: (1) he was developmentally impaired since birth; (2) he possessed learning disabilities, low intelligence, poor comprehension, and retarded socialization skills that prevented him from achieving academically and forming normal relationships; and (3) he had a long history of mental health problems. (Rule 32 C.R. Vol. 18, Tab 47 at 16-17).
The trial court conducted evidentiary hearings on December 10, 1996, and January 20-21, 1997. (Rule 32 R. Vol. 19, Tab 48; Rule 32 R. Vol. 22). Among the witnesses at the hearings were two mental health experts, Dr. David Lisak and Dr. Karl Kirkland. On December 31, 1997, the trial court denied the petition. (Rule 32 R. Vol. 45, Tab 77). The mental health evidence presented to the trial court is summarized below.
Dr. David Lisak, the clinical psychologist
Dr. Lisak also reviewed various records in preparation for the hearing, including: Jenkins's birth certificate; hospital records from Jenkins's birth; Jenkins's juvenile records; records from the San Bernardino Department of Mental Health; school records for both Jenkins and his siblings; records from Jenkins's time at Taylor Hardin Secure Medical Facility; Jenkins's medical records from Holman Prison; records from the Department of Corrections; the psychiatric records of Jenkins's sister, Pammy Jo Montez; the Lunacy Commission's Report on Jenkins; the pre-sentence investigation report on Jenkins; large portions of original trial transcript; newspaper reports concerning Jenkins's crime; the District Attorney's file; the police report regarding an interview with Jenkins while in custody at the Los Angeles County Jail; and the transcript of the earlier portion of the evidentiary hearing. (Id. at 435-38).
Dr. Lisak did not perform any psychiatric testing. (Rule 32 R. Vol. 21 at 467-68). Rather, he explained that he evaluated Jenkins for the purpose of constructing a developmental history and "to evaluate the abuse he had suffered and describe and interpret for his attorneys the impact of those traumas on his development." (Rule 32 R. Vol. 22 at 575). Dr. Lisak determined Jenkins: (1) was a slow learner; (2) was physically, emotionally, and sexually abused; (3) was neglected both medically and in terms of nurturing and basic loving and care; and (4) suffered from pervasive adverse impacts to his cognitive development due to chronic and severe trauma suffered during childhood. (Rule 32 R. Vol. 21 at 443-49). Further, based upon his interviews of third-parties, review of the records, and evaluation of Jenkins, Dr. Lisak concluded Jenkins: (1) had suffered from emotional, psychiatric, and psychological disturbances all his life; (2) was severely depressed for much of his life; and (3) suffered post-traumatic stress symptoms throughout his life. (Rule 32 R. Vol. 22 at 486-492). Finally, Dr. Lisak testified that he did not diagnose Jenkins as suffering from any mental disease or defect because he was not asked to make a diagnosis. (Id. at 571). However, Dr. Lisak concurred with Dr. Kirkland's test results indicating Jenkins had borderline intellectual capacity. (Rule 32 R. Vol. 21 at 467-68).
Dr. Karl Kirkland, a licensed psychologist retained by the state to evaluate Jenkins, testified that he performed a "general post conviction appeal evaluation" of Jenkins. (Rule 32 R. Vol. 22 at 610-11, 618). In conjunction with the evaluation, Dr. Kirkland reviewed the Rule 32 petition, the original trial transcript, and administrative and medical records from the Department of Corrections. Dr. Kirkland also attended the earlier portion of the evidentiary hearing on the Rule 32 petition, observed Jenkins's prison cell, and spoke with Jenkins's therapist. (Id. at 618). On September 5, 1996, Dr. Kirkland met with Jenkins at Holman Prison and administered a number of psychological tests over a four or five hour period. (Id. at 619). Dr. Kirkland found that Jenkins: (1) maintained a clean and organized cell; (2) had good relationships with guards; (3) was depressed; and (4) was taking a mild tranquilizer and anti-depressant. (Id. at 619-21). Dr. Kirkland stated that, although Jenkins did not seem to trust him, he seemed to understand who he was and why he was there. (Id. at 620-21).
Dr. Kirkland administered a Bach Depression Inventory test, which is a questionnaire relating to symptoms of depression in numerous categories. (Id. at 621-22). The results of the Bach Depression Inventory test showed severe depression. (Id. at 622).
Dr. Kirkland explained that the Minnesota Multiphasic Personality Inventory test is a 399-item self-reported true-false inventory. When scored, it produces a profile that can be used to evaluate the subject's validity or test-taking attitude, clinical characteristics, as well as past and current emotional functioning. (Id. at 622-23).
Dr. Kirkland also performed a Competency to Stand Trial Assessment on Jenkins. It is a structured interview that assesses a person's understanding of the trial process and the legal system. The results indicated that Jenkins "had an adequate understanding of the trial process and did not evidence a mental disorder that would interfere with that process." (Id. at 623-24).
The Wechsler Adult Intelligence Scale is an intelligence test commonly administered and accepted in the field. (Id. at 624). Jenkins "scored in the range of borderline intellectual functioning which is between mild mental retardation and low average intellectual functioning." (Id. at 624, 670). Jenkins's overall IQ score was 76. (Id.). Dr. Kirkland opined that Jenkins "cooperated and was not malingering or trying to throw the results a certain way," which was "consistent with his school records that Dr. Lisak testified about and consistent with other reports of his difficulties with academic functioning." (Id. at 624). Further, Dr. Kirkland noted in the following testimony that an IQ of 76 is two standard deviations below the norm, placing Jenkins in the bottom ten percent of the population:
A: Yes.
(Id. at 670-71).
The RAT-3 is a test of achieved knowledge or actual academic achievement. On this test, Dr. Kirkland found Jenkins was "functioning on a third grade level in both reading, spelling and arithmetic, which placed him at the first percentile," which is "generally consistent with the [WAIS-R] Results and generally consistent with his clinical presentation and also consistent with his history." (Id. at 625; see 669). Dr. Kirkland concluded Jenkins was "not technically learning disabled, as much as he is just a slow learner overall." (Id.).
The Short Category Test Booklet Format is used as a neuro-psychological screening instrument. It is a shortened version of a much longer neuro-psychological test that is part of a battery of tests. (Id. at 626). This test measures brain damage, flexibility, and problem solving ability. (Id. at 669-70). Jenkins scored at the first percentile on this test, which is in an impaired range. (Id. at 626, 669). Dr. Kirkland testified that in his experience "often inmates that have been incarcerated for a while tend to have difficulty with this particular test, not necessarily because of brain damage, but because they have trouble shifting gears and get easily frustrated with the task." (Id. at 626).
Finally, Dr. Kirkland administered the Forensic Assessment of Criminal Responsibility Procedure on Jenkins. (Id.). It is "a procedure that involves or is present in any mental state at the time of offense or forensic evaluation that involves assigning some type of criminal responsibility." (Id.). It involves reviewing "trial transcripts or the D.A. file, taking a statement from the defendant about his feelings, actions, and behavior surrounding the time of the offense as well as post-offense behavior which would in this case include leaving the State and requesting an alibi if one assumes those facts are true." (Id. at 627). From his review of the D.A. file, Dr. Kirkland concluded Jenkins's behavior showed an "awareness of wrongfulness or criminality after the offense and that his behavior was not entirely consistent with what [Jenkins] told [Dr. Kirkland] about being in a black-out the entire time." (Id.).
Dr. Kirkland also reviewed Jenkins's records from Taylor Hardin, including the diagnosis reached by the Lunacy Commission. He summarized the findings of the Lunacy Commission as follows:
(Id. at 634). Dr. Kirkland noted the Lunacy Commission conducted its evaluations approximately fourteen months after the offense. This was significant to Dr. Kirkland because it is "a lot easier to do a retrospective analysis fourteen months after an offense rather than several years after an offense." (Id. at 635).
Dr. Kirkland's opinion ultimately was that Jenkins did not suffer from a mental disease or disorder at the time of the murder that would have detracted from his ability to appreciate the criminality of his acts. (Id. at 636, 687). Dr. Kirkland added that, because Jenkins's IQ and achievement scores are roughly in the same vicinity, Jenkins does not have a learning disability but is a slow learner.
Jenkins appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals. Both sides briefed the issues raised by Jenkins and argued them before the appellate court. On June 20, 2002, before the Alabama Court of Criminal Appeals issued an opinion, the United States Supreme Court handed down its opinion in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court held that the execution of mentally retarded criminals violates the Eighth Amendment's prohibition of cruel and unusual punishment. Thus, while Jenkins's collateral appeal was still pending, the Alabama Court of Criminal Appeals ordered the parties to file supplemental briefs, addressing the possible impact of Atkins on Jenkins's case.
The parties both submitted supplemental briefs on August 15, 2002. The State contended any claim by Jenkins that he is mentally retarded is procedurally barred and that Jenkins is not mentally retarded. (Appellee's Supplemental Brief, Rule 32 C.R. Vol. 39, Tab 55). Jenkins argued that, because his mental retardation is supported by the record and because Alabama has no procedure for adjudicating mental retardation in capital cases, the court should either: (1) stay his appeal until the Alabama Legislature enacts appropriate legislation in light of Atkins; or (2) vacate his death sentence and remand the case to the trial court with directions to stay the case until the legislature enacts such legislation. (Appellant's Supplemental Brief, Rule 32 C.R. Vol. 39, Tab 56). The state submitted a reply brief on September 19, 2002. (Appellee's Supplemental Reply Brief, Rule 32 C.R. Vol. 39, Tab 57). Simultaneously, Jenkins submitted a supplemental reply brief, arguing: (1) his Atkins claim was not procedurally barred; (2) his case should be stayed pending the enactment of appropriate Atkins legislation; and (3) it would be cruel and unusual punishment to execute Jenkins because he is mentally retarded. (Appellant's Supplemental Reply Brief, Rule 32 C.R. Vol. 39, Tab 58).
The Alabama Court of Criminal Appeals affirmed the trial court's denial of Jenkins's amended Rule 32 petition on February 27, 2004. Jenkins v. State, 972 So.2d 111 (Ala. Crim. App. 2004). With regard to Jenkins's Atkins claim, the court found the following:
Id. at 154-55.
Jenkins next raised the claim in an application for rehearing. (Brief in Support of Petition for Writ of Certiorari, Rule 32 C.R. Vol. 39, Tab 59 at 58). The Alabama Court of Criminal Appeals denied his application for rehearing on May 21, 2004. Jenkins v. State, 972 So.2d 111 (Ala. Crim. App. 2004). Jenkins then presented the claim to the Alabama Supreme Court in a petition for writ of certiorari, arguing that because he made a prima facie showing of mental retardation, it was unreasonable for the Alabama Court of Criminal Appeals to refuse to remand his case to the trial court for an evidentiary hearing. (Petition for Writ of Certiorari, Rule 32 C.R. Vol. 40, Tab 60 at 57; Brief in Support of Petition for Writ of Certiorari, Rule 32 C.R. Vol. 40, Tab 61 at 109). On April 8, 2005, the Alabama Supreme Court affirmed the Court of Criminal Appeals' affirmance of the trial court's denial of this claim. Ex parte Jenkins, 972 So.2d 159 (Ala. 2005).
Jenkins contends he is mentally retarded and ineligible for execution under Atkins. Because this claim was denied on the merits in the state court, this court must first determine whether the state court's decision can survive review under 28 U.S.C. § 2254(d). Unless Jenkins prevails on his claim under § 2254(d), he is not entitled to present new evidence to this court and is not entitled to an evidentiary hearing on his mental retardation claim. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99 (2011). The review of Jenkins's Atkins claim in this court is "limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 1398. Further, the "backward-looking language" of the statute requires an examination of the state court's decision on the date it was made. Id.
"By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784 (2011)(internal quotations omitted).
28 U.S.C. § 2254(d).
The "contrary to" and "unreasonable application" clauses of § 2254(d) have been interpreted as "independent statutory modes of analysis." Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07).
A state-court determination can be "contrary to" clearly established Supreme Court precedent in at least two ways:
Williams, 529 U.S. at 405 (emphasis added); see also, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005) (same); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (same); Putman v. Head, 268 F.3d 1223, 1240-41 (11th Cir. 2001) (same).
The Eleventh Circuit has observed that the majority opinion in Williams does not limit the construction of § 2254(d)(1)'s "contrary to" clause to the two examples set forth above.
A state court's determination of a federal constitutional claim can result in an "unreasonable application" of clearly established Supreme Court precedent in either of two ways:
Williams, 529 U.S. at 407 (emphasis added) see also, e.g., Putman, 268 F.3d at 1240-41 (same).
It is important to note that "an unreasonable application of federal law is different from an incorrect application." Williams, 529 U.S. at 410 (emphasis in original). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411 (emphasis added).
In other words, the question is not whether the state court "correctly" applied Supreme Court precedent when deciding the federal constitutional issue but whether the state court's determination was "unreasonable." Id. at 409 ("[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable."); see also, e.g., Bell, 535 U.S. at 694 (observing the "focus" of the inquiry into the reasonableness of a state court's determination of a federal constitutional issue "is on whether the state court's application of clearly established federal law is objectively unreasonable," and stating that "an unreasonable application is different from an incorrect one"); Harrington v. Richter, 131 S.Ct. 770, 785-87 (2011) (same).
In order to demonstrate that a state court's application of clearly established federal law was "objectively unreasonable," the habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87 (emphasis added). Stated another way, if the state-court's resolution of a claim is debatable among fairminded jurists, it is not "objectively unreasonable."
"By its very language, [the phrase] `unreasonable application' refers to mixed questions of law and fact, when a state court has `unreasonably' applied clear Supreme Court precedent to the facts of a given case." Neelley v. Nagle, 138 F.3d 917, 924 (11th Cir. 1998) (citation and footnote omitted). Mixed questions of constitutional law and fact are those decisions "which require the application of a legal standard to the historical-fact determinations." Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963).
"28 U.S.C. § 2254(d)(2) imposes a `daunting standard — one that will be satisfied in relatively few cases.'" Cash v. Maxwell, 132 S.Ct. 611, 612 (2012) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010) (internal quotation marks omitted in original)).
Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore, "even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's . . . determination." Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (punctuation omitted). Conversely:
Atkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249-50 (11th Cir. 2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc) (punctuation omitted)).
Jenkins maintains the state court's adjudication of his mental retardation claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law and was an unreasonable determination of the facts in light of the evidence presented in state court. (Jenkins' Amended Petition, Doc. 12 at 24; Jenkins' Reply Brief, Doc. 48 at 23).
Alabama uses the definition of mental retardation adopted by the Alabama Supreme Court in Ex parte Perkins, 851 So.2d 453 (Ala. 2002). Perkins held that to be considered mentally retarded for purposes of the Eighth Amendment's prohibition on execution, a defendant "must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior" that "manifested themselves during the developmental period (i.e., before the defendant reached age 18)." Id. at 456. Later, in Smith v. State, No. 1060427, 2007 WL 1519869 at *8 (Ala. May 25, 2007), the Alabama Supreme Court "reaffirmed the definition of mental retardation it identified in Perkins" and "clarified that it is implicit in that definition that the IQ and deficits in adaptive behavior exist not only prior to the age of eighteen but also both at the time of the crime and currently." Powell v. Allen, 602 F.3d 1263, 1272 (11th Cir. 2010) (citing Smith, 2007 WL 1519869 at *8).
Jenkins contends the state appellate court's use of the Perkins standard in rejecting his Atkins claim was either contrary to, or an unreasonable application of, clearly established federal law:
(Jenkins's Reply Brief, Doc. 48 at 35-38) (parentheticals and footnote omitted). Jenkins further alleges that Smith v. State, clarifying that the IQ and deficits in adaptive behavior must also be present at the time of the crime and at the time the Atkins claim is raised, is unconstitutional and was improperly applied to his case.
"Although the Atkins Court alluded to clinical definitions propounded by the American Association on Mental Retardation
Jenkins maintains the Alabama Court of Criminal Appeals' decision that he is not mentally retarded is contrary to, and involved an unreasonable application of, clearly established federal law. Jenkins further contends this decision was an unreasonable determination of the facts in light of the evidence presented in state court. Jenkins divides his arguments among the three criteria for determining mental retardation: (1) significantly subaverage intellectual functioning (an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of those deficits before the age of eighteen.
Jenkins acknowledges that Dr. Karl Kirkland administered the Wechsler Adult Intelligence Scale to him in 1996, resulting in a IQ of 76. (Jenkins's Reply Brief, Doc. 48 at 24). He emphasizes that Dr. Kirkland stated Jenkins's IQ score was two standard deviations below the mean. (Id.). Jenkins argues that when "the "Flynn Effect'
This court finds Jenkins has failed to provide clear and convincing evidence to overcome the presumption of correctness that attaches to the state appellate court's factual findings. Jenkins also has not demonstrated that the state court unreasonably applied federal law in connection with the assessment of his intellectual functioning or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Further, Jenkins did not raise his Flynn Effect argument in the state court.
As previously stated, when a state court has adjudicated a claim on the merits, this court must judge the decision on the record before that court. Since Jenkins did not raise the Flynn Effect as an issue during collateral review, this court cannot now consider it. However, even if Jenkins had raised the Flynn Effect as a concern on collateral review, neither Atkins nor Alabama law requires that a court take the phenomenon into account when evaluating a defendant's IQ test scores. The cases cited by Jenkins in support of the Flynn Effect
Beckworth, 2009 WL 1164994 at *38 n.5 (some citations omitted), reversed on other grounds, Ex parte Beckworth, No. 1091780, 2013 WL 3336983 (Ala. July 3, 2013).
A more recent decision of the Alabama Court of Criminal Appeals, Albarran v. State, 96 So.3d 131 (Ala. Crim. App. 2011), makes it clear that consideration of the Flynn Effect is not a requirement when applying Alabama's criteria for determining whether a criminal defendant suffers from mental retardation. That opinion states:
Albarran, 96 So.3d at 199-200 (second alteration supplied, all others in original, footnote omitted).
Jenkins argued to the Alabama Court of Criminal Appeals that, given the Standard Error of Measurement ("SEM") of plus or minus five points, Jenkins meets the threshold for mental retardation. (Appellant's Supplemental Reply Brief, Rule 32 C.R. Vol. 39, Tab 58). However, neither the appellate court nor Dr. Kirkland indicated that they took the SEM into account.
It is undisputed that Jenkins scored 76 on the IQ test administered by Dr. Kirkland. Thus, considering the SEM, Jenkins's IQ falls within a range of 71-81, which is still above the threshold established in Perkins. Further, the record of the Rule 32 proceedings indicates that testing performed on Jenkins in 1980, when he was twelve years old, calculated his IQ at 90 on the Peabody Picture Vocabulary Test and Raven Progressive Matrices Test, and 83 on the Wechsler Intelligence Scale for Children — Revised.
None of the mental health experts who have evaluated Jenkins over the course of his life has concluded Jenkins has significant limitations in his intellectual functioning or that he is mentally retarded. Further, none of his IQ scores, adjusted for the SEM, puts Jenkins below a 71 IQ score. Thus, the state appellate court's finding that Jenkins's IQ does not meet the Perkins standard for "significantly subaverage intellectual functioning (an IQ of 70 or below)" is not unreasonable.
Jenkins also argues that Dr. Kirkland's conclusion that Jenkins's IQ is two standard deviations below the mean is enough, on its own, to establish the "sufficiently subaverage intellectual functioning" prong of the Perkins test. (Jenkins's Motion for an Evidentiary Hearing, Doc. 49 at 3). However, it is apparent that Dr. Kirkland simply misspoke when he made this statement. According to the AAMR, an IQ of 100 is the mean IQ score, and the standard deviation is fifteen. AAMR, Mental Retardation 36-67 (9th ed. 1992). Thus, two deviations from the mean (30) indicates an IQ score of 70. Dr. Kirkland clearly stated that Jenkins's IQ is 76.
Because Jenkins's IQ test scores fall within the SEM, he must also "be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Hall v. Florida, 134 S.Ct. 1986, 2001 (2014). "The AAMR defines the term `adaptive behavior' as the collection of conceptual, social, and practical skills that people learn in order to function in their everyday lives." Thomas v. Allen, 607 F.3d 749, 754 (11th Cir. 2010) (citing Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009). "[S]ignificant or substantial deficits in adaptive behavior are defined as `concurrent deficits or impairments in present adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.'" Holladay, 555 F.3d at 1353. "The American Association on Mental Retardation (AAMR) defines mental retardation as follows: `Mental retardation refers to substantial limitations in present functioning.'" Atkins, 536 U.S. at 308 n. 3. Therefore, in order for Jenkins to be considered mentally retarded in the Atkins context, he must currently (at the time the Atkins claim was adjudicated) exhibit deficits in adaptive behavior. Moreover, these problems must have manifested themselves before the age of eighteen.
In concluding that Jenkins did not exhibit significant or substantial deficits in his adaptive behavior, the Alabama Court of Criminal Appeals stated there was "evidence presented at Jenkins's trial indicating that Jenkins maintained relationships with other individuals and that he had been employed by P.S. Edwards Landscaping Company, Cotton Lowe 76 Service Station, and Paramount Painting Company." Jenkins, 972 So. 2d at 955. Jenkins argues that the state court's "focus on only two skill areas was an unreasonable application of Atkins." (Jenkins's Response to the State's Opposition to Motion for Evidentiary Hearing, Doc. 52 at 11).
Jenkins maintains that the state court record contains overwhelming evidence of his significant adaptive deficits in the areas of functional academic skills, communication skills, self-care, home living, social/interpersonal skills, use of community resources, and self-direction. (Jenkins's Reply Brief, Doc. 48 at 28-34).
With respect to functional academic skills, Jenkins notes the following:
(Id. at 28-30).
With respect to communication skills, Jenkins argues the following:
(Jenkins's Reply Brief, Doc. 48 at 30).
With respect to self-care, Jenkins argues:
(Jenkins's Reply Brief, Doc. no. 48 at 30-31).
With respect to home living, Jenkins notes:
(Jenkins's Reply Brief, Doc. 48 at 31).
With respect to social and interpersonal skills, Jenkins maintains that:
(Jenkins's Reply Brief, Doc. 48 at 31-33).
With respect to use of community resources and self-direction, Jenkins offers the following:
(Jenkins's Reply Brief, Doc. no. 48 at 33-34).
The respondent maintains the evidence before the state court reveals that Jenkins does not have significant limitations in adaptive functioning. (Respondent's Opposition to Motion for Evidentiary Hearing, Doc. 51 at 19). The respondent first argues that Lonnie Seal's testimony at the penalty phase of the trial supports a finding that Jenkins does not have significant limitations in adaptive functioning:
(Id. at 19-22).
The respondent further argues the facts surrounding Jenkins's crime also reveal that he does not have significant deficits in adaptive functioning:
(Id. at 22-24).
Additionally, there was testimony at the evidentiary hearing concerning Jenkins's most recent adaptive behavior while he was incarcerated. Bonnie Adams, a jailer for the St. Clair County Sheriff, testified that while Jenkins was in the county jail from 1989 through 1991, she had constant contact with him. (Rule 32 R. Vol. 19, Tab 48 at 13-17). Ms. Adams stated that Jenkins was a model inmate, the best she ever supervised, who never complained about anything or caused trouble while he was in jail. (Id. at 18-27). Virginia Price, another jailer for the St. Clair County Sheriff, also testified that Jenkins was the model inmate, always polite and respectful. (Id. at 35-41). Finally, Dr. Kirkland testified that he reviewed Jenkins's cell and met with Jenkins at Holman Prison for several hours. (Rule 32 R. Vol. 22 at 618-19). Dr. Kirkland testified that Jenkins's cell was organized and clean and that Jenkins had good relationships with guards. (Id.).
Jenkins argues he has significant limitations in adaptive functioning in the following skill areas: academic, communication, self-care, home living, social/interpersonal, community resources, and self-direction. Almost all of the evidence cited by Jenkins pertains to his childhood. It is indisputable that Jenkins had a horrible childhood in which he was seriously abused, ignored, and mistreated by his parents. However, Jenkins's school records indicate his poor academic performance was due at least in part to his family problems, including frequent moves and multiple absences from school. (Rule 32 C.R. Vol. 27 at 877-964). Additionally, many of the behavioral deficits Jenkins now claims to possess were in no way attributable to Jenkins or his adaptive ability. Rather, they were the result of the way Jenkins was treated by his parents since his birth.
With the exception of academic skills, the respondent provides facts to support an argument that Jenkins did not have significant limitations in adaptive functioning in other skill areas during both the time period leading up to the murder and time following the murder. Further, as the appellate court noted in its opinion on Jenkins's collateral appeal, there was testimony at trial indicating that during the time period surrounding the murder, Jenkins maintained relationships with others and was employed by a landscaping company, service station, and painting company. Jenkins, 972 So. 2d at 155.
Jenkins argues that the appellate court's "focus on only two skill areas was an unreasonable application of Atkins." (Jenkins's Response to the State's Opposition to Motion for Evidentiary Hearing, Doc. 52 at 11). However, the fact that the appellate court mentioned only two skill areas in its opinion does not necessarily mean that no other skill areas were considered. See Harrington v. Richter, 562 U.S. 86, 98 (2011) ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a `claim,' not a component of one, has been adjudicated.").
The state record is replete with evidence pertaining to the various skill areas. The evidence cited by Jenkins in support of his claim that he lacked skills in a number of areas pertains mainly to his childhood, which was unquestionably terrible. However, the record shows that Jenkins's deficit in academic skills was in part a result of matters that were beyond his control, such as his poor family life, frequent moves and changes in schools, and frequent absences. Similarly, the deficits Jenkins claims existed in other behaviors were in large part the result of the way his family abused, ignored, and mistreated him. Further, the evidence pertaining to the time of the offense and adjudication of the Atkins claim indicates Jenkins did not have significant or substantial deficits in adaptive behavior during that period of time. Given the evidence before the state court, Jenkins is unable to establish that the Alabama Court of Criminal Appeals' decision-that Jenkins did not possess significant or substantial deficits in adaptive behavior-resulted in: (1) a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The final requirement in proving an Atkins claim is that the alleged mental retardation (significantly subaverage intellectual functioning and significant or substantial deficits in adaptive behavior) must have been present before the petitioner turned eighteen. Perkins, 851 So. 2d at 456. Jenkins argues that "all relevant evidence shows [his] mental retardation manifested before the age of eighteen and is a lifelong condition." (Jenkins's Reply Brief, Doc. 48 at 34). However, taking all evidence into account, Jenkins cannot demonstrate his alleged mental retardation manifested before he attained the age of eighteen.
School records clearly show Jenkins's poor performance in school was due in part to excessive absences, late assignments, and lack of fundamental skills in math, reading, and language. (Rule 32 C.R. Vol. 27 at 877-964). At age 12, officials determined through extensive intelligence and adaptive functioning testing that Jenkins's intellectual capacity was average and that he was dyslexic, which impaired his ability to read. (Id. at 955). Officials noted that frequent moves, changes in schools, family problems, and a learning disability (dyslexia) all contributed to Jenkins's "problems." (Id. at 958). Additional testing performed when Jenkins was 14 years old concluded that he functioned in the dull-normal range of intelligence and was suffering from a "definite learning disability." (Id. at 846). School and court officials clearly determined that Jenkins's intelligence scores and adaptive functioning skills were attributable to his learning disability and other circumstances in his life, rather than mental retardation. Thus, Jenkins is unable to establish that the decision by the Alabama Court of Criminal Appeals-that his alleged mental retardation manifested itself before he was eighteen years old-was contrary to clearly established federal law. Neither can Jenkins show the Alabama Court of Criminal Appeals' decision either unreasonably applied clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Jenkins has failed to establish that the Alabama Court of Criminal Appeals' decision that he is not mentally retarded under Atkins was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Thus, his Atkins claim is due to be
Because he cannot prevail on his Atkins claim, Jenkins is not entitled to an evidentiary hearing on that claim. See Cullen v. Pinholster, 131 S. Ct. at 1398-99. Thus, Jenkins's Motion for an Evidentiary Hearing on his Atkins claims (Doc. 49) is due to be
An appropriate order will follow.
Allan Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary on Statutory Text and Supreme Court Precedent, 60 WASH. & LEE L. REV. 677, 685 (2003) (footnotes omitted).
Id. (quoting Williams, 529 U.S. at 409) (emphasis in original).
Atkins, 536 U.S. at 308 n.3.
Thomas, 607 F.3d at 753.
(Rule 32 C.R. Vol. 27 at 955-58).
(Rule 32 C. R. Vol. 27 at 846-47).
Seal indicated that she did not believe Jenkins was paid enough for the hours he worked.
Jenkins's cousin, Tammy Lynn Pitts testified to the following: she is five years older than Jenkins and lived with Jenkins and his family until she was in her twenties; Jenkins was beaten and mistreated as a child; his mother hid him from the family because his father was Mexican or Puerto Rican; his mother did not change his diapers regularly, so he was forced to sit in soiled diapers for several days at a time; he suffered bad diaper rash; his mother never bathed him; while he was a baby, his mother smacked and tossed him around like he was nothing; things got worse when Jenkins's step-father was released from prison; his step-father beat him daily until he left home; Jenkins tried to hide his soiled sheets and put clean sheets on his bed to avoid beatings; Jenkins's parents called him names such as "Puerto Rican puke" and "Bastard" and gave him no affection; he was forced to attend school in his soiled clothing; Jenkins begged his father not to beat him, telling him he loved him; Jenkins was locked in his room, filthy with dog feces and dirty clothes that were never washed, and was not let out of his bedroom except to go to school or do chores; after the family ate, they threw food into his bedroom for him, or he ate out of a trash can or ate dog food; his siblings were treated better than he was; he was forced to wear diapers at age 9; his parents drank a lot and used drugs; the living conditions in the home were filthy with dirty dishes and clothes; and the dogs destroyed the house and urinated inside. (Id. at 182-225).
