DEBRA M. BROWN, District Judge.
Petitioner, Larry N. Jenkins, Jr., inmate no. 42769, who is currently confined at the Mississippi State Penitentiary, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he seeks to challenge his State court convictions and sentences for fondling and sexual battery. Having considered the parties' filings and the applicable law, the Court finds that federal habeas relief is not warranted, and that this action should be dismissed.
Larry Jenkins was indicted on three counts of fondling and two counts of sexual battery for crimes alleged to have occurred on occasions between September 19, 2008, and February 22, 2009. The victim in each count was his sixteen year-old daughter, "Bonnie," who, along with her mother, "Judy," testified against Jenkins at trial.
On direct appeal, Jenkins' convictions and sentences for fondling on Counts I and IV and sexual battery on Count V were affirmed, but his conviction and sentence for sexual battery on Count II was reversed and rendered. Jenkins v. State, 101 So.3d 161 (Miss. Ct. App. 2012), reh'g denied, September 4, 2012, cert. denied, November 15, 2012 (Cause No. 2010-KA-01156-COA). Specifically, the court held that the victim's testimony "failed to show, beyond a reasonable doubt, that there was penetration in regard to the September 19, 2008, incident." Jenkins, 101 So. 3d at 168. As a result of the appellate court's decision, Jenkins is currently serving consecutive sentences of fifteen years on Counts I and IV and thirty years on Count V.
Aggrieved by the appellate court's decision, Jenkins sought permission to file a motion for post-conviction relief in the trial court, raising the following grounds for relief pro se:
The Mississippi Supreme Court denied Jenkins' request for permission to proceed in the trial court on a post-conviction motion, holding, in part:
Doc. #9-2.
On or about June 4, 2014, Jenkins, proceeding pro se, filed the instant federal habeas petition, raising the following grounds for relief:
Doc. #1.
In Ground Two (A), Jenkins claims that trial counsel rendered ineffective assistance in failing to conduct a pretrial investigation, and in Ground Two (D), Jenkins alleges that counsel rendered ineffective assistance by failing to assert Jenkins' actual innocence. Respondents argue that Jenkins failed to properly exhaust his State court remedies with regard to these claims, and that they are, therefore, barred. In his Reply to Respondents' Answer, Jenkins claims that he did present these claims in filings submitted to the Bolivar County Circuit Court and the Mississippi Supreme Court. However, a review of these documents demonstrates that Jenkins never properly presented the claims alleged in Grounds Two (A) and (D) in the State courts. See Docs. #14-1, #14-2. Jenkins has, therefore, failed to properly exhaust these claims as is required before he may present them on federal habeas review. See 28 U.S.C. § 2254(b)(1) (requiring federal habeas petitioner to first exhaust State court remedies); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (holding that, in order to meet exhaustion requirement, petitioner must present claims to state's highest court in procedurally proper manner to allow state court fair opportunity to consider and pass on claims). Because there is no avenue by which Jenkins may now present his claims in State court in a procedurally proper manner his claims are "technically exhausted," and are, thus considered to be procedurally defaulted for purposes of federal habeas review. See Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998); see also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
Jenkins' procedural default bars this Court's review of his defaulted claims unless he demonstrates either cause for and prejudice as a result of the default, or that failure to review the claims would result in a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 485 (1986); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Court finds that Jenkins filed a pro se application for permission to proceed with a post-conviction motion, and as such, it was he who chose not to raise the issues for which he now seeks federal habeas review. Therefore, he cannot establish cause for his default. Absent a showing of cause, the Court need not consider whether there is prejudice. Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).
Moreover, Jenkins has not established that the Court's failure to consider these claims will result in a fundamental miscarriage of justice. This exception to the procedural default rule is limited to cases of actual innocence where the petitioner shows, as a factual matter, that he did not commit the crime of conviction. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citation and quotation marks omitted). To establish the requisite probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 644. Jenkins has produced no such evidence. Therefore, habeas relief cannot be granted with regard to Jenkins's claims in Grounds Two (A) and (D).
Related to the concept of procedural default is the procedural bar doctrine, which bars federal claims that were presented to the State court and disposed of on State-law grounds. See, e.g., Walker v. Martin, 131 S.Ct. 1120, 1127 (2011). This doctrine is relevant to the claims Jenkins presents in Grounds One and Two (B) of his federal petition.
In Ground One, Jenkins alleges that the indictment for fondling referenced only the victim's "private parts" and did not, therefore, provide him with adequate notice of his allegedly unlawful conduct. This claim was barred on direct appeal because Jenkins failed to lodge a contemporaneous objection at trial. The Mississippi Court of Appeals held:
Jenkins, 101 So. 3d at 165.
In Ground Two (B), Jenkins alleges that his trial counsel rendered ineffective assistance in failing to subpoena a single witness as part of a defense, even after counsel provided a list of names to the trial court and received two continuances. The Mississippi Supreme Court held this claim was procedurally barred on post-conviction review, noting that "Jenkins's appellate counsel did not represent him at trial. Therefore, the failure to raise the ineffective assistance of trial counsel claim on direct appeal `constitute[s] a waiver barring consideration of the issues in post-conviction proceedings.' M.R.A.P.22(b)."
With regard to the allegations in Ground Two (B), the Court notes that "[w]hen a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment." Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722 (1991)). Mississippi Rule of Appellate Procedure ("M.R.A.P.") 22(b), the application of which supplied the procedural bar applied to the instant ineffective assistance of counsel claim, supplements Miss. Code Ann. § 99-39-21(1).
Like a prisoner seeking review of a technically exhausted claim, a prisoner seeking to obtain review of a claim barred by a State procedural rule must demonstrate either cause and actual prejudice overcoming the default, or that a "fundamental miscarriage of justice" would result from refusal to consider his claims. See Coleman, 501 U.S. at 750. In order to find the cause necessary to excuse the procedural bar, "there must be something
Murray v. Carrier, 477 U.S. 478, 488 (1986). However, because Jenkins has not made an allegation in the State courts that appellate counsel was ineffective for failing to raise his challenge to trial counsel as set forth in Ground Two (B) on direct appeal, he may not rely on an allegation of attorney error to vitiate the procedural bar. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (holding that "ineffective assistance adequate to establish cause for procedural default of some other constitutional claim is itself independent constitutional claim" that must be exhausted) (emphasis in original).
Additionally, the Court finds that attorney error cannot be used to overstep the procedural bar applied to the claim in Ground One. The Court determines that counsel was not ineffective, and as the appellate court noted, the use of the phrase "private parts" in the indictment was more specific than the language contained in the statute.
Neither can Jenkins demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. As was noted with regard to Grounds Two (A) and (D), in order to avail himself of the "fundamental miscarriage of justice" exception, Jenkins must show actual innocence, that "as a factual matter, [] he did not commit the crime of conviction." Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995); Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). Jenkins has not asserted any new, reliable evidence which shows that it was "more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Fairman, 188 F.3d at 644 (citation omitted). Therefore, Jenkins cannot establish the applicability of this exception. Jenkins' claims in Grounds One and Two (B) are barred from federal habeas review.
Jenkins' allegations in Grounds Two (C) and Three were decided on their merits by the State courts. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
A state court's decision is "contrary to" Supreme Court law if: (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases"; or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The "unreasonable application" clause is reserved for decisions that either fail to identify the correct governing law, or that identify the correct governing law, but misapply it to the case. Id. at 407-08. Under this standard, a state court's decision will not warrant federal habeas relief unless its application of federal law is both "incorrect and unreasonable[.]" Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004) (emphasis in original) (citation omitted). A federal habeas court considers only the state court's conclusion when determining whether there has been an unreasonable application of federal law, and not the court's reasoning in reaching the decision. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
Jenkins alleges that trial counsel was ineffective because during cross examination she elicited improper testimony from Judy and opened the door for the introduction of testimony regarding Jenkins' criminal history.
A claim of ineffective assistance of counsel requires the petitioner to demonstrate that counsel rendered deficient performance that prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether counsel's performance was deficient requires consideration of whether counsel's performance was objectively reasonable under prevailing professional norms. Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009). In evaluating counsel's performance, courts presume that counsel rendered reasonable professional judgment. See id.; Strickland, 466 U.S. at 690.
A petitioner can establish prejudice as a result of counsel's performance if he can show that the outcome of his trial would have been different but for counsel's alleged errors, and that "the result of the proceedings was fundamentally unfair or unreliable." Vuong v. Scott, 62 F.3d 673, 685 (5th Cir. 1995) (quotation omitted). A petitioner must establish both prongs of the Strickland test to prevail on his claim of ineffective assistance. See, e.g., Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998). Additionally, where a claim has been adjudicated on the merits by the state court, the question is not whether counsel's actions were reasonable, but "whether the state court's application of the Strickland standard was unreasonable," which is a "doubly" deferential inquiry. Harrington v. Richter, 131 S.Ct. 770, 785 (2011); see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The Mississippi Court of Appeals considered this claim of ineffective assistance of counsel, summarizing the facts regarding the challenged cross-examination as follows:
Jenkins, 101 So. 3d at 170-71.
The Court notes that following the challenged testimony, trial counsel made it clear that she was attempting to establish that Jenkins was involved in his children's lives and was not a "deadbeat." Doc. #10-2 at 137. Prior to eliciting the challenged testimony, there had been testimony that Jenkins was not employed and was trying to qualify for social security insurance. Id. at 131. Respondents argue it was a valid trial strategy for counsel to attempt to show that Jenkins had been an involved father, and that trial counsel's service was not ineffective.
Jenkins' trial counsel asked a State's witness to tell the jury why Jenkins was not allowed to work at the school, and she asked the witness to elaborate on the nature of the complaint against Jenkins. See Doc. #10-2 at 132. The Court finds it difficult to imagine what favorable response counsel was expecting. Therefore, the Court declines to determine that eliciting this specific information was part of a valid trial strategy. However, as noted by the appellate court, Jenkins has not demonstrated prejudice as a result of this brief exchange. First, the trial judge gave the jury a limiting instruction. A jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 255, 234 (2000) (internal citation omitted). Additionally, as discussed below, ample evidence supported Jenkins' conviction. The finding that counsel was not ineffective was neither contrary to, nor an unreasonable application of, Strickland or its progeny. The decision was not based on an unreasonable determination of the facts in light of the evidence. Therefore, Jenkins is not entitled to federal habeas relief with regard to this claim.
In Ground Three, Jenkins challenges the weight of the evidence against him.
The appellate court considered this issue and found:
Jenkins, 101 So. 3d at 170-71.
Jenkins' challenge to the weight of the evidence is not cognizable on federal habeas review. The Court nonetheless determines that the appellate court's findings are supported by the record. Therefore, this claim does not warrant federal habeas relief.
Jenkins must obtain a certificate of appealability ("COA") before appealing this Court's decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless a petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To obtain a COA on any claim rejected on its merits, a petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim that has been rejected on procedural grounds, a petitioner must demonstrate "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. Applying these standards, the Court concludes that a COA should be denied in this case.
For the reasons set forth herein, Jenkins' petition for a writ of habeas corpus is
