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Jenkins v. King

United States District Court, S.D. Mississippi, Southern Division

January 3, 2017

ROBERT L. JENKINS # 38083 PETITIONER
v.
RON KING and MARSHALL L. FISHER RESPONDENTS

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS [24] AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [5]

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Report and Recommendations [24] of United States Magistrate Judge Robert H. Walker, recommending that the Court deny Petitioner Robert Jenkins' (“Petitioner”) Amended Petition [5] for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. The Report and Recommendations [24] was entered on November 4, 2015. Petitioner filed Objections [25] to the Report and Recommendations, Respondents filed an Opposition to [26] Petitioner's Objections, and Petitioner filed a Reply [27]. The parties also submitted supplemental briefing on November 30, 2016. See Resp't Suppl. Br. [31]; Pet'r Suppl. Br. [32].

         Having considered the Report and Recommendations [24] and conducted a de novo review of the portions to which Petitioner objects, the Court finds that Petitioner's Objections [25] should be overruled. The Report and Recommendations [24] will be adopted as the finding of the Court in light of the resolution of the appeal of the judgment of the district court in Grim v. Epps, No. 3:14-CV-00134- DMB-DAS, 2015 WL 5883163 (N.D. Miss. Oct. 8, 2015). On March 8, 2016, the United States Court of Appeals for the Fifth Circuit reversed the district court's judgment granting habeas relief, and the Supreme Court of the United States denied the petition for a writ of certiorari on October 3, 2016. Grim v. Fisher, 816 F.3d 296 (5th Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026 (U.S. Oct. 3, 2016). In light of the Fifth Circuit decision in Grim v. Fisher, Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2254 will be denied and the Amended Petition [5] will be dismissed with prejudice.

         I. BACKGROUND

         Following a jury trial in the Circuit Court of Harrison County, Mississippi, Petitioner Robert Jenkins was found guilty of possession of cocaine in an amount of more than 0.1 gram but less than 2 grams, in violation of Miss. Code Ann. § 41-29-139. Jenkins v. State, 102 So.3d 1063, 1064 (Miss. 2012). Petitioner was classified as a habitual offender and sentenced to life imprisonment. Id. at 1065.

         At Petitioner's trial, the State introduced a forensic laboratory report confirming that the substance Petitioner possessed was cocaine and that it weighed 0.1 gram-the minimum weight in the statutory range for the charged offense. Obj. [25] at 1. The technician from the Mississippi Crime Laboratory who tested and weighed the substance, Alison Smith (“Smith”), was unavailable to testify at trial because she was on extended medical leave. Id.; R. & R. [24] at 3. Instead, the lab report was introduced through the testimony of a supervisor, Timothy Gross (“Gross”), who oversaw the overall operation of the lab and had signed the report as a technical and administrative reviewer. R. & R. [24] at 3.

         Gross reviewed the data from the cobalt thiocyanate test and the gas chromatography mass spectroscopy test performed by Smith, and he reached an independent conclusion from his analysis of the examination data that the substance tested was cocaine. Id. Gross also testified that the report indicated that the substance weighed at least 0.1 gram, but Gross did not personally weigh the sample. Pet'r Suppl. Br. [32] at 8. The policy of the lab was not to report any weight less than one tenth of a gram, but to round it to the lowest tenth of a gram in the report. Id. A sample reported to weigh 0.1 gram could thus weigh anywhere between 0.10 and 0.19 grams. Id. The weight of the substance was an issue of significance at trial; at the close of the State's evidence, Petitioner's counsel moved for a directed verdict on grounds that the State had not specifically proven that the weight of the substance was 0.1 grams. R. [16-4] at 79-80. This motion was overruled, and the jury found Petitioner guilty.

         After exhausting his remedies in state court, Petitioner filed a Petition [1] for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on December 16, 2014, as well as an Amended Petition [5] on January 20, 2015. Petitioner claims that his Sixth Amendment right to confront the witnesses against him was violated when the trial court permitted the supervisor, Gross, to present testimonial evidence in place of the analyst, Smith, who actually performed the tests and weighed the sample. Pet. [1] at 5-6; Am. Pet. [5] at 6. Specifically, Petitioner argues that the Supreme Court of Mississippi's decision that his Sixth Amendment right was not violated was an unreasonable application of clearly established federal law as determined by the Supreme Court in Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011) (holding that “[t]he accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist”). Mem. Supp. Pet. [2] at 1-2.

         Respondents filed an Answer [15] to the Amended Petition [5] on April 1, 2015. Petitioner filed a Rebuttal [17] on April 10, 2015. Respondents then filed an additional Response in Opposition to Petitioner's Rebuttal [18] and Petitioner filed a Reply to the Response [20]. Petitioner also filed a Supplemental Reply to Respondents' Answer [22] on October 9, 2015, to notify the Court of new persuasive authority from the United States District Court for the Northern District of Mississippi, Grim v. Epps, in which the district court granted habeas relief under circumstances similar to the present case. No. 3:14-CV-00134-DMB-DAS, 2015 WL 5883163 (N.D. Miss. Oct. 8, 2015). On October 22, 2015, Respondents filed a Response to Petitioner's Supplemental Briefing [23], arguing that the Court should await a decision in the Grim case, which had been appealed to the Fifth Circuit. Suppl. Resp. [23] at 3.

         On November 4, 2015, the Magistrate Judge entered a Report and Recommendations [24], recommending that the Court deny habeas relief.[1] Petitioner filed Objections [25] to the Report and Recommendations [24] as to the Magistrate's recommendation that habeas relief be denied. Respondents filed a Response [26] in Opposition to Petitioner's Objections [25]. Petitioner filed a Reply [27] on November 30, 2015.

         In an Order [28] dated January 7, 2016, the Court stayed this matter pending the ultimate resolution of the appeal of the judgment of the district court in Grim v. Epps, No. 3:14-CV-00134-DMB-DAS, 2015 WL 5883163 (N.D. Miss. Oct. 8, 2015). On March 8, 2016, the Fifth Circuit issued an opinion reversing the district court's judgment granting habeas relief, and the Supreme Court denied Petitioner's petition for a writ of certiorari on October 3, 2016. Grim v. Fisher, 816 F.3d 296 (5th Cir. 2016), cert denied, No. 16-5253, 2016 WL 4083026 (U.S. Oct. 3, 2016). On November 16, 2016, this Court lifted the stay of this case and indicated that it would accept supplemental briefing from the parties in light of the outcome of the appeal in Grim. Order [30]. Supplemental briefing was submitted by Petitioner and Respondents on November 30, 2016. Resp't Suppl. Br. [31]; Pet'r Suppl. Br. [32].

         II. DISCUSSION

         A. Legal Standard

         Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), the district judge must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3).

         However, the district court need not “reiterate the findings and conclusions of the magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Nor must it consider “[f]rivolous, conclusive or general objections.” Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). When there has been no objection to a magistrate judge's ruling, a clearly erroneous, abuse of discretion, and contrary to law standard is appropriate. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.1989). After conducting the required review, the district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge [and] may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1) (2012).

         In so reviewing Petitioner's Objections [25], the Court is mindful that Congress, through the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2241, et seq., has restricted federal court review of habeas petitions filed on behalf of persons in state custody. Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.”). 28 U.S.C. § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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