United States District Court, N.D. Mississippi, Greenville Division
LARRY N. JENKINS, JR., Petitioner,
EARNEST LEE and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, Respondents.
MEMORANDUM OPINION AND ORDER
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. Jenkins was subsequently convicted of two counts of fondling (Counts I and IV) and two counts of sexual battery (Counts II and V) in the Circuit Court of Bolivar County, Mississippi. He was sentenced as an habitual offender to serve fifteen years each on Counts I and IV and thirty years each on Counts II and V, with the sentences to be consecutively served in the custody of the Mississippi Department of Corrections. Jenkins appealed his convictions and sentences to the Mississippi Supreme Court, which assigned the case to the Mississippi Court of Appeals. Jenkins, through counsel, raised the following grounds for relief:
I. Jenkins's indictment for fondling did not put him on adequate notice as required by law, thus violating his right to due process.
II. Jenkins's conviction(s) for fondling merge with his conviction(s) for sexual battery and therefore, violates his rights under the double jeopardy clause of the United States Constitution.
III. Trial counsel's ineffectiveness deprived Jenkins of his constitutionally mandated right to a fair trial.
A. Introduction of prior convictions.
IV. The trial court erred when it overruled Jenkins's motion for J.N.O.V. because the State's evidence was insufficient to support a conviction for sexual battery.
V. The trial court erred when it failed to grant Appellant his motion for a new trial on the grounds that overwhelming weight of the evidence did not support the verdict.
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:
I. Petitioner's indictment for fondling did not put him on adequate notice required by law, thus violating his right to due process.
II. Trial counsel's ineffectiveness deprived petitioner of his constitutionally mandated right to a fair trial.
A. Trial counsel was ineffective in opening the door to the introduction of Petitioner's prior convictions.
B. Trial counsel was ineffective in failing to subpoena any witnesses on behalf of the defense.
C. Trial counsel was ineffective because she was inadequately prepared to
argue against the State's motion to admit evidence of prior bad acts.
III. The trial court erred when "granting" motion to admit prior bad acts pursuant to Rule 404(b) and 405(b).
IV. The trial court erred when it failed to grant Petitioner his motion for a new trial on the grounds that the overwhelming weight of the evidence did not support the verdict.
The Mississippi Supreme Court denied Jenkins' request for permission to proceed in the trial court on a post-conviction motion, holding, in part:
Jenkins's first claim, challenging his indictment, and fourth claim, challenging the trial court's denial of a new trial, were addressed on direct appeal and are procedurally barred by the doctrine of res judicata. Jenkins asserts in his third claim that the trial court erred by granting evidence of prior bad acts. This issue was capable of being raised on direct appeal, and it has been waived.
Jenkins also asserts that he received ineffective assistance of counsel at trial. In the first assertion, he claims trial counsel was ineffective for eliciting testimony from a State's witness about Jenkins's prior felony convictions. The issue was raised and squarely addressed on direct appeal. Therefore, it is barred by res judicata. As for his second assertion of ineffective assistance of counsel, 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). Notwithstanding waiver, the remaining ineffective assistance of ...