Mark Jenkins v. Commissioner, Alabama Department of Corrections

Case: 17-12524 Date Filed: 08/30/2019 Page: 1 of 73
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-12524
D.C. Docket No. 4:08-cv-00869-VEH
MARK ALLEN JENKINS,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(August 30, 2019)
Before TJOFLAT, WILSON, and BRANCH, Circuit Judges.
BRANCH, Circuit Judge:
Mark Allen Jenkins, an Alabama prisoner sentenced to death for the 1989
murder of Tammy Ruth Hogeland, appeals the district court’s denial of his petition
Case: 17-12524 Date Filed: 08/30/2019 Page: 2 of 73
for a writ of habeas corpus, 28 U.S.C. § 2254. Before us are Jenkins’s arguments
that he received ineffective assistance of counsel during the penalty phase of his
trial and that he is intellectually disabled and therefore ineligible for the death
penalty. After careful consideration, and with the benefit of oral argument, we
affirm the denial of Jenkins’s habeas petition on both grounds.
I. BACKGROUND
A. The Crime and Arrest
We summarize the following background narrative from opinions of the
Alabama Court of Criminal Appeals and our own review of the record. See Jenkins
v. State, 627 So. 2d 1034, 1037–40 (Ala. Ct. Crim. App. 1992); Jenkins v. State,
972 So. 2d 111, 119–20 (Ala. Ct. Crim. App. 2004). The events leading up to the
murder began the evening of April 17, 1989. Jenkins was at the home of his
acquaintance Christine Nicholas. He had met her several months earlier at the
Omelet Shoppe restaurant where she worked. Jenkins was very intoxicated and
tried to seduce her. When she resisted, Jenkins got “real mad” and asked her
several times what she would do if someone came up from behind her and grabbed
her.
At around 1 a.m., Jenkins and Nicholas drove to the Riverchase Omelet
Shoppe. Jenkins went inside and talked with one of the waitresses, Frieda Vines.
The manager, Douglas Thrash, recognized Jenkins as a regular customer who knew
2
Case: 17-12524 Date Filed: 08/30/2019 Page: 3 of 73
all of the waitresses. Thrash overheard part of Jenkins’s conversation with Vines
and heard mention of the Omelet Shoppe location near the Birmingham Airport.
Jenkins and Nicholas then returned to Nicholas’s home. Around 2 a.m., Nicholas’s
mother asked Jenkins to leave. He did so, falling down some steps and ramming
his car into another vehicle in the process.
Meanwhile, 23-year-old Tammy Hogeland was making her way to work at
the Omelet Shoppe. Her sister Wendy, along with Tammy’s young son, picked
Tammy up from her college classes and drove her to the Riverchase Omelet
Shoppe a little after 9:30 p.m. Sometime after 10:00, Tammy was sent to work at
the airport Omelet Shoppe on Tenth Avenue, since that location was unexpectedly
shorthanded. Tammy was wearing her watch, a necklace with the words “special
sister,” her class ring, and her diamond engagement ring. Tammy was working as a
cook that night and was wearing a blue apron, black pants, a white shirt, and white
shoes. She and Sarah Harris were the only employees working at the airport
Omelet Shoppe that night.
At about 2 a.m. on April 18, Harris saw Jenkins—whom she did not know—
drive up in a red sports car. His arrival was memorable to Harris because the car
nearly jumped the curb and crashed through the restaurant’s glass wall. Jenkins got
out of the car and came into the restaurant, appearing to be intoxicated. He walked
over to Hogeland and began talking to her. Harris later saw Jenkins and Hogeland
3
Case: 17-12524 Date Filed: 08/30/2019 Page: 4 of 73
drive away together in the red sports car. That was the last time anyone who knew
Hogeland ever saw her. Hogeland left behind her cigarettes, lighter, purse, and
paycheck. She left without telling anyone, which she had never done before.
Although Harris saw them drive off, she could not later say whether Hogeland left
with Jenkins willingly or was instead abducted.
At around 5 a.m. that morning, Bobby and Geraldine Coe had stopped to
buy gas at a Chevron station on I-59 northeast of Birmingham when they saw
Jenkins drive up in the red sports car. The Coes noticed a female who appeared to
be “passed out” in the front passenger seat, but they could not say whether she was
alive or dead. While Bobby Coe was pumping gas, Jenkins asked him for some
cigarettes and said, “Looks like it’s been a long night and it looks like it’s going to
be a long day.” Jenkins then said “God bless you” before asking directions to I-
459. Coe gave him directions and got back in his car. As Coe pulled out onto the
interstate, he saw Jenkins follow him in the red sports car. Coe then saw the car
flash its lights, slow down, and pull to the side of the road between mile markers
151 and 152.
At 8 a.m., Wendy Hogeland learned that Tammy was not at the restaurant,
and their mother called the police. Meanwhile, Jenkins went to the home of Steve
Musser, who noticed that he was wearing the same clothes as the day before.
Jenkins told Musser that his car had been stolen the night before and asked him if
4
Case: 17-12524 Date Filed: 08/30/2019 Page: 5 of 73
he would say that he had been with him all night. Musser refused. Christine
Nicholas also saw Jenkins in a grocery store that morning. He was looking at a
newspaper, making a phone call, and attempting to sell his Buick. Nicholas loaned
him $4 for gas. At around 10 o’clock that morning, Jenkins sold his car to Michael
Brooks, a mechanic at a local Chevron station. Jenkins had explained that he
needed the money so he could visit his sick mother in California. Another
mechanic at the service station drove Jenkins to the Greyhound bus station later
that morning.
Jenkins awoke the next day on the Greyhound bus in Houston and was
ejected from the bus because his fare was used up. He then hitchhiked from
Houston to Phoenix, then to San Diego and Los Angeles. Jenkins was first
identified as a suspect in Hogeland’s disappearance by Officer Mike Weems of the
Hoover Police Department on April 19. Weems ate dinner at the Riverchase
Omelet Shoppe just about every day and had talked with Hogeland just as often.
He also knew Jenkins from the restaurant. Weems learned of Hogeland’s
disappearance from the other waitresses. Remembering how Jenkins often talked to
Hogeland and passed her notes,1 he gave Jenkins’s name to the missing persons
investigator. The investigator also learned that a red Mazda RX-7 sports car, which
1
The jury was not permitted to hear, and the record does not reveal, what exactly Jenkins had
said to Hogeland that made Officer Weems suspect him in her disappearance.
5
Case: 17-12524 Date Filed: 08/30/2019 Page: 6 of 73
had been reported stolen from the service station where Jenkins worked, had been
recovered on I-459.
The afternoon of April 21, a truck driver who had happened to stop on I-59
near mile marker 151 discovered Hogeland’s body off the side of the road. She was
naked, wearing only a watch, and was so badly decomposed that the body had to
be identified by dental records. From the fractured hyoid bone, it was determined
that she was manually strangled to death. Also found at the scene were Hogeland’s
apron, shoes, bra, panties, pants, and hair net, as well as some beer cans, a Mazda
RX-7 owner’s manual, and other items later determined to have come from the red
Mazda. Her necklace and rings were never found.
Alabama authorities issued a warrant for Jenkins’s arrest and also obtained a
federal fugitive warrant. An FBI agent arrested Jenkins on May 1 in front of his
uncle’s house in Wilmington, California. Jenkins’s uncle later gave the police three
bags of Jenkins’s personal effects. Fibers recovered from Hogeland’s body and
clothing matched those of the Mazda, and hairs matching Hogeland’s were found
in the Mazda. Similarly, fibers from Jenkins’s clothing placed him in the Mazda,
and fibers of his jeans were found on Hogeland’s apron. A bootprint near
Hogeland’s body matched a combat boot from among the belongings Jenkins’s
uncle gave to the police, and Jenkins’s roommate said the boots looked just like
those that Jenkins wore.
6
Case: 17-12524 Date Filed: 08/30/2019 Page: 7 of 73
A business card like those that had been in the Mazda’s glove box,
belonging to an owner of the Mazda, was recovered from Jenkins’s wallet after his
arrest in California. Later, Jenkins’s cellmate in the Alabama jail reported that
Jenkins told him “he had done the crime” and was worried that the couple from the
gas station would identify him or that the police would find his fingerprint on a
beer can at the scene. A St. Clair County grand jury indicted Jenkins for capital
murder.
B. The Trial and Sentencing
Jenkins was represented at trial in 1991 by attorneys Douglas Scofield and
Stan Downey. Scofield, the lead attorney, had been practicing criminal defense in
Birmingham since 1984 but had never before tried a capital murder case. Jenkins’s
landlord and his grandmother had arranged the referral and representation before
the court appointed him. Scofield agreed to the appointment on the condition that a
St. Clair County lawyer also be appointed. That lawyer was Downey, who had
more experience than Scofield but whose capital experience was limited to one
case that had not gone to trial. The two attorneys had agreed that Downey would
be responsible for jury selection, but Scofield eventually took over during the voir
dire. Per their agreement, Scofield was responsible for the guilt-phase trial,
although Downey participated by interviewing Jenkins several times. Scofield also
met with Jenkins around a dozen times. Jenkins had told him about his background
7
Case: 17-12524 Date Filed: 08/30/2019 Page: 8 of 73
and childhood, including the fact that he had had a difficult childhood and had
lived on the streets since age 11.
Throughout the weeklong trial, Scofield pursued an outright acquittal. In
particular, he challenged Harris’s identification of Jenkins as the man who drove
away with Hogeland, and he challenged the medical examiner’s opinions about the
time and cause of Hogeland’s death. In his closing argument, Scofield took a wide-
ranging approach to undermining the State’s wholly circumstantial case against
Jenkins. He attacked the State’s timeline of the crime, questioning whether Jenkins
in his intoxicated state would have had the time and the ability to leave Nicholas’s
house, steal the Mazda, and abduct and kill Hogeland. He reminded the jury of the
weakness of Harris’s identification of Jenkins and the Coes’ identification of the
woman in the car. He pointed out that no physical evidence definitively linked
Jenkins to the Mazda, to Hogeland’s body, or to her jewelry, which was never
recovered. And he argued that the evidence provided no plausible motive for
Jenkins to have kidnapped, robbed, or killed Hogeland. In sum, he urged the jury
to find reasonable doubt and acquit Jenkins. At the very least, he argued, they
should find that the State failed to prove Jenkins’s intent to rob and kidnap
Hogeland, which were necessary to convict Jenkins of capital murder. He further
argued that, if the jury thought Jenkins killed Hogeland as a crime of passion, they
could convict him only of manslaughter. The jury deliberated for three hours and
8
Case: 17-12524 Date Filed: 08/30/2019 Page: 9 of 73
fifteen minutes before convicting Jenkins of capital murder, Ala. Code § 13A-5-
40(a)(1) & (2), i.e., murder committed in the course of kidnapping and robbery.
The penalty phase took place that same afternoon. A week before trial,
Scofield and Downey had discussed the penalty phase, and Scofield understood
that Downey would be responsible for handling the penalty phase. Nonetheless, the
witness who was present to testify on Jenkins’s behalf during the penalty phase
was better acquainted with Scofield, so Downey suggested that afternoon that
Scofield conduct the direct examination. Scofield urged Downey to interview the
witness quickly and prepare to examine him, and Downey did so.
Downey handled the penalty presentation to the jury. The State did not
present any additional aggravation evidence, resting on the evidence presented
during the guilt phase. One witness, Lonnie Seal, testified on Jenkins’s behalf in
order, in Downey’s words, to “reveal another side of Mark Jenkins to you that you
don’t know anything about.” Seal had met Jenkins in Fontana, California, in 1988
when they both worked at the same garage. Seal and his wife became friends with
Jenkins, and he visited in their home. When the Seals decided to move to Alabama
a few months later, Jenkins agreed to help with their move and to live with the
Seals in Alabama for a time. It took Lonnie Seal several weeks to find a job, but
Jenkins found a job in two days and contributed toward the family’s rent and
9
Case: 17-12524 Date Filed: 08/30/2019 Page: 10 of 73
groceries. Jenkins continued to visit the Seals after he moved into his own home,
and he would always bring a small gift for and play with the Seals’ infant son.
Downey’s closing argument to the jury requested a sentence of life without
parole. Downey reminded the jurors that they had agreed during voir dire that
death was not always the appropriate punishment for homicide. Quoting the Bible,2
he reminded the jury that the Old Testament permitted capital punishment only
when supported by the testimony of two or three eyewitnesses, whereas in this case
there had been only circumstantial evidence. He asserted from Seal’s testimony
that “Mark had a side of him that was generous, that was giving, and that was
kind,” and argued that the deterrent and retributive purposes of capital punishment
would not be served in this case.
The jury deliberated for 50 minutes before returning its nonbinding
recommendation of death by a vote of 10 to 2. See Ala. Code § 13A-5-46(e) (1981)
(amended 2017 to make jury’s verdict binding). After a separate hearing, the court
found the two statutory aggravating factors for which the State had argued: that the
murder was committed during the commission of a robbery, and that it was
committed during the commission of a kidnapping. See Ala. Code § 13A-5-49(4).
2
“If anyone kills a person, the murderer shall be put to death on the evidence of witnesses. But
no person shall be put to death on the testimony of one witness.” Numbers 35:30 (ESV). Downey
also paraphrased Deuteronomy 17:6 as “On the evidence of two witnesses or three witnesses, he
is [sic] shall be put to death. He shall not be put to death on the evidence of one witness.”
10
Case: 17-12524 Date Filed: 08/30/2019 Page: 11 of 73
The court also found two statutory mitigating factors: that Jenkins had no
significant history of prior criminal activity, and his age at the time of the crime
(21). See id. § 13A-5-51(1), (7). The court considered but rejected the statutory
mitigation that, due to his consumption of alcohol, Jenkins’s capacity to appreciate
the criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired. See id. § 13A-5-51(6). The court found that the
aggravating circumstances outweighed the mitigating circumstances and, in
accordance with the jury’s recommendation, imposed a sentence of death.
C. The State and Federal Post-Conviction Proceedings
On direct appeal, the Alabama Court of Criminal Appeals affirmed Jenkins’s
conviction and death sentence. Jenkins v. State, 627 So. 2d 1034 (Ala. Ct. Crim.
App. 1992), aff’d, 627 So. 2d 1054 (Ala. 1993), cert. denied, 511 U.S. 1012
(1994). In 1995, Jenkins filed his first petition for state postconviction relief, Ala.
R. Crim. P. 32,3 alleging, among many other things, that he received ineffective
assistance of counsel during his penalty phase. The Rule 32 trial court conducted a
three-day hearing at which evidence was presented about the performance of
Jenkins’s attorneys.
3
“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal
offense may institute a proceeding in the court of original conviction to secure appropriate relief
on the ground that . . . [t]he constitution of the United States or of the State of Alabama requires
a new trial, a new sentence proceeding, or other relief. . . .” Ala. R. Crim. P. 32.1.
11
Case: 17-12524 Date Filed: 08/30/2019 Page: 12 of 73
Scofield testified about the representation that he and Downey provided. In
relevant part, Scofield asserted that he and Downey had “decided that [developing
mitigation for the penalty phase] would be something that Stan [Downey] would
handle.” Downey later told Scofield that he hadn’t done any such investigation, but
Scofield admitted that, “[a]part from what he has told me, I don’t know what he
has done.” Scofield testified that Downey “didn’t appear prepared” for the penalty
phase, based on Downey’s last-minute suggestion that Scofield examine Seal since
he had talked with him before.
In preparation for the penalty phase, Scofield himself did not interview any
member of Jenkins’s family, but he did not know whether Downey interviewed
any family members. Scofield did interview Jenkins’s landlord and some other
acquaintances but did not do so specifically for the purpose of developing
mitigation. He had met with Jenkins around a dozen times, and Jenkins had told
him his life story including his experience of abuse as a child. In hindsight,
Scofield said he had a “lack of appreciation of mitigating circumstances.” He
repeatedly denied in his Rule 32 testimony that his omissions during the penalty
phase were strategic: “I didn’t understand what I was doing. . . . I just didn’t
understand what I needed to do.”
For reasons that remain unclear, Downey—who is since deceased—did not
testify or submit an affidavit in the Rule 32 proceeding. Scofield answered,
12
Case: 17-12524 Date Filed: 08/30/2019 Page: 13 of 73
“Obviously not,” when asked whether he had personal knowledge of everything
Downey may or may not have done to prepare for the penalty phase. The record of
the extent of Downey’s pretrial preparation is thus limited to Downey’s detailed
fee declaration, which he submitted to the State of Alabama in documentation of
the compensation due him as appointed counsel. See Ala. Code § 15-12-21. In it,
Downey reported that he spent 71 hours4 on out-of-court preparation for trial. The
report details 35 hours of interviews with Jenkins in 18 separate visits to the jail
over the course of 17 months, as well as one substantive conversation with
Jenkins’s grandmother.5
The Rule 32 trial court also heard testimony from four family members and
one friend of Jenkins’s. The family members presented for the first time a stark
depiction of Jenkins as an unloved and abused child in California. Jenkins’s older
brother Michael Jenkins testified that all of his siblings have different fathers and
that his parents often used drugs and fought. Michael testified that Jenkins was
beaten frequently as a child by his stepfather, if not every day then every other day
4
In Jenkins’s state postconviction appeal, the Alabama Court of Criminal Appeals erroneously
stated that Downey’s fee declaration reports 171 hours of pretrial preparation. See Jenkins, 972
So. 2d at 137. We discuss the effect of this discrepancy infra note 7.
5
The state appellate court also noted that Downey had moved for a continuance in October 1989
so that he could conduct “[f]urther discovery and investigation (including a possible trip to
California).” Id. We note that Scofield had orally suggested to the trial court in September 1989
that more time might be needed with respect to “evidence about the defendant” and witnesses in
California, as well as possible psychological evaluation.
13
Case: 17-12524 Date Filed: 08/30/2019 Page: 14 of 73
or every three days. Jenkins was beaten all over his body with a variety of
implements. Michael was beaten too. Jenkins’s stepfather would lock Jenkins in
his bedroom for a couple of hours at a time, sometimes without dinner. Some of
the beatings were prompted by Jenkins’s bedwetting or soiling. Michael testified
that Jenkins’s stepfather sometimes made Jenkins wear his soiled underwear on his
head and even forced him to eat his own feces a few times. Michael testified that
Jenkins’s bladder and bowel control problems began after a camping trip he took
with his stepfather and stepgrandfather.
Michael testified that, as children, he and Jenkins were made to work on car
engines late into the night and to shovel horse manure daily. The family moved
frequently and the children attended many different schools as a result. Michael
testified that he was Jenkins’s only friend as a child and that Jenkins did poorly in
school. Jenkins began running away from home as a young teenager and lived with
various other family members or on the streets. Michael said that Jenkins was a
good brother to him and had asked him to testify at his trial, but he never heard
from his attorneys or found out when the trial was. Michael admitted to having
cognitive and memory problems due to a head injury years earlier.
Jenkins’s cousin Tammy Pitts testified that, as an infant, Jenkins’s mother
beat and neglected him, leaving him dirty and in soiled diapers. His stepfather also
beat Jenkins daily until he left home at age 13, sometimes bruising him so badly
14
Case: 17-12524 Date Filed: 08/30/2019 Page: 15 of 73
that he was laid up in bed for days or weeks. Jenkins had problems with
bedwetting and soiling, and his stepfather made him wear soiled clothes to school.
Jenkins would be locked in his filthy bedroom around the clock except to attend
school and do chores. He was usually not allowed to eat dinner with the rest of the
family and subsisted on scraps and dog food. The entire family belittled Jenkins
because his biological father was Hispanic and his complexion was therefore
darker. Jenkins’s parents drank a lot and used drugs every day. Pitts knew these
things because she had daily contact with the family and lived with them off and
on, and Jenkins lived with her for a time after he ran away from home. No one had
contacted her about testifying at Jenkins’s trial.
Jenkins’s second cousin Betty DeLavega testified that her relationship with
Jenkins was like that of an aunt. She lived with the Jenkins family for five months
when Jenkins was 10 or 11. She saw Jenkins’s stepfather slap Jenkins “[q]uite a
few times,” and once, he made Jenkins eat his own feces. DeLavega testified that
Jenkins’s parents used drugs nearly every day and withheld affection from Jenkins
and Michael. No one contacted her about Jenkins’s trial; Jenkins’s grandmother
had asked her to testify in the Rule 32 hearing about any abuse she had witnessed.
Jenkins’s grandmother Doris Wagoner testified that while Jenkins’s mother
was pregnant with him, her husband was in prison and she drank and took drugs.
When Jenkins was born, his mother initially put him up for adoption, then changed
15
Case: 17-12524 Date Filed: 08/30/2019 Page: 16 of 73
her mind weeks later. Jenkins was a lethargic infant and his mother cared more
about partying than about her children. Wagoner testified that she heard of
Jenkins’s mistreatment as a child but didn’t see it. She could tell from the way that
Jenkins feared his stepfather that he was being abused, and she knew he slept in a
filthy bed. After Jenkins was arrested for murder, Wagoner spoke with Scofield,
who asked for money relating to his representation of Jenkins. She did not
remember whether she talked with Scofield about Jenkins’s background. She could
not remember why she didn’t testify at the trial; she might have been ill, but she
was probably busy.
Sherry Seal, the wife of Lonnie Seal, who had testified in the penalty phase
of the trial, testified that Jenkins was respectful and generous and that she trusted
him with her children. She related how he supported her family after moving to
Alabama, giving them “pretty much” his entire paycheck. She said she would still
feel safe around Jenkins. Two jailers also testified that Jenkins was a respectful,
courteous, model inmate who never complained or caused any problems.
Jenkins also introduced medical, school, and juvenile court records from his
childhood. The medical records document his premature birth and his mother’s
intention to give him up for adoption. The school records reflect a struggling
student who was repeatedly promoted to the next grade because of his age, despite
serious academic difficulties, chronic truancy, and frequent school changes. The
16
Case: 17-12524 Date Filed: 08/30/2019 Page: 17 of 73
juvenile court records document Jenkins’s placement in juvenile hall starting at age
14, following repeated acts of grand theft auto and running away.
The Rule 32 hearing concluded with the testimony of two psychologists
about Jenkins’s history of psychological trauma stemming from his childhood
abuse. The defense expert, Dr. David Lisak, had met with Jenkins three times and
interviewed a dozen of his family members, family friends, and associates. Dr.
Lisak testified that the pervasive abuse and neglect in Jenkins’s childhood impaired
his ability to cope with trauma as an adult. He opined that Jenkins’s childhood
abuse adversely affected his cognitive and emotional development and other
abilities. He described how Jenkins had been neglected as an infant and sexually
abused by his grandfather at age four, which led to a lifetime of bladder and bowel
dysfunction. He also discussed the hypothesis that children who are abused are at
greater risk for perpetrating violence later in life, but he acknowledged there would
have been other causative factors in Jenkins’s case. Dr. Lisak described Jenkins’s
intellectual capacity as “somewhat borderline,” though he did not perform any
testing of his own.
The State’s expert, Dr. Karl Kirkland, had met with Jenkins for several hours
and administered several tests. On the Wechsler Adult Intelligence Scale, Jenkins
“scored in the range of borderline intellectual functioning which is between mild
mental retardation and low average intellectual functioning” with an overall IQ of
17
Case: 17-12524 Date Filed: 08/30/2019 Page: 18 of 73
76. Dr. Kirkland agreed that Jenkins had been “reared in a chaotic dysfunctional
family” and generally agreed with Dr. Lisak’s assessment of the negative effects of
childhood trauma.
The court considered all of this evidence before denying Rule 32 relief in
full. As relevant here, it found that some of the evidence about the severity of
abuse that Jenkins suffered as a child was not credible. It further found that Jenkins
suffered no prejudice from any deficient performance by his penalty-phase counsel
because the aggravating circumstances outweighed any additional mitigating
evidence Downey might have adduced.
The Alabama Court of Criminal Appeals affirmed the denial of Rule 32
relief. Jenkins v. State, 972 So. 2d 111 (Ala. Ct. Crim. App. 2004). In relevant part,
the appeals court rejected Jenkins’s ineffective assistance claim, finding that
counsel reasonably chose to pursue a penalty-phase strategy of residual doubt and
good character. Id. at 147. It explained that the new evidence was self-
contradictory in that it asserted that childhood abuse would have made Jenkins a
violent adult yet also asserted that Jenkins was meek and mild. Id. The appeals
court also agreed with the lower court’s conclusion that Jenkins suffered no
prejudice from any error by his counsel because the aggravating circumstances still
outweighed any new mitigating ones. Id. at 148. The court also noted that evidence
18
Case: 17-12524 Date Filed: 08/30/2019 Page: 19 of 73
about Jenkins’s good behavior in jail awaiting trial was “minimally mitigating” and
would not have affected the sentence. Id. at 149.
Because the Supreme Court’s decision in Atkins v. Virginia6 had issued
during the pendency of the Rule 32 appeal, the Alabama appeals court ordered
supplemental briefing on the possible impact of Atkins upon Jenkins’s sentence.
Jenkins asked the court to stay the proceedings and conduct an evidentiary hearing
after the Alabama legislature enacted a statute about executing the mentally
retarded or, in the alternative, to vacate his sentence and remand after the Alabama
legislature acted. He later asserted that he is mentally retarded and therefore
ineligible for the death penalty. The appeals court proceeded to reject Jenkins’s
Atkins claim on the merits because the record established that his IQ was 76 and
that he maintained relationships and employment. Id. at 155. The Alabama
Supreme Court summarily affirmed, in relevant part. Ex parte Jenkins, 972 So. 2d
159, 165 (Ala. 2005), remanded to 972 So. 2d 165 (Ala. Ct. Crim. App. 2005)
(juror misconduct claim), cert. denied, 552 U.S. 1167 (2008).
In 2008, Jenkins filed his first petition for a writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254. The federal proceedings were stayed for
several years while Jenkins pursued additional, unrelated Rule 32 relief in the state
6
536 U.S. 304, 321 (2002) (holding that the execution of mentally retarded offenders violates the
Eighth Amendment). The rule announced in Atkins is retroactive to cases on collateral review. In
re Holladay, 331 F.3d 1169, 1172–73 (11th Cir. 2003).
19
Case: 17-12524 Date Filed: 08/30/2019 Page: 20 of 73
courts, ultimately unsuccessfully. In the district court, Jenkins moved for an
evidentiary hearing on his Atkins claim. After reviewing the state court record,
with a focus on the Rule 32 testimony of Drs. Lisak and Kirkland, the district court
denied the motion in 2015. Noting that our Circuit has accepted the State of
Alabama’s definition of mental retardation following Atkins, the court found that
Jenkins is not intellectually disabled under that standard. In a 347-page order, the
district court also denied relief on all of Jenkins’s claims including ineffective
assistance of counsel during the penalty phase and affirmed as reasonable the state
court’s conclusion that Jenkins failed to establish prejudice from any error by his
counsel. The district court later denied reconsideration and a certificate of
appealability.
Jenkins now appeals. Our Court granted Jenkins a certificate of
appealability, 28 U.S.C. § 2253(c), on two issues:
1) Whether the district court erred in denying Appellant’s claim
that his trial counsel rendered ineffective assistance of counsel in the
investigation and presentation of mitigating evidence during the
penalty phase of Appellant’s 1991 trial; and
2) Whether the district court erred in denying Appellant’s claim
that he is intellectually disabled and ineligible for the death penalty
under Atkins v. Virginia, 536 U.S. 304 (2002).
II. STANDARDS OF REVIEW
We review the denial of a petition for a writ of habeas corpus de novo.
Morrow v. Warden, Ga. Diagnostic Prison, 886 F.3d 1138, 1146 (11th Cir. 2018).
20
Case: 17-12524 Date Filed: 08/30/2019 Page: 21 of 73
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) instructs that
a writ of habeas corpus shall not be granted to a state prisoner unless the state
adjudication of a claim “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.” 28 U.S.C. § 2254(d)(1). “[C]learly
established Federal law” means “the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). “[W]hen the last state court to
decide a prisoner’s federal claim explains its decision on the merits in a reasoned
opinion . . . a federal habeas court simply reviews the specific reasons given by the
state court and defers to those reasons if they are reasonable.” Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). A state court’s decision is reasonable “so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). “[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. at 102. Rather, a prisoner must
show that the state court’s ruling “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 103. That ruling must have been “‘objectively
unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White v.
21
Case: 17-12524 Date Filed: 08/30/2019 Page: 22 of 73
Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75
(2003)).
In addition, “a determination of a factual issue made by a State court shall be
presumed to be correct,” and the prisoner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). AEDPA further instructs that a writ of habeas corpus may not be
granted unless the state court adjudication “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.” Id. § 2254(d)(2). When a federal habeas court makes a
factual finding as part of its habeas determination, we review for clear error, which
is a “highly deferential” standard of review. Thomas v. Allen, 607 F.3d 749, 752
(11th Cir. 2010) (quoting Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325,
1350 (11th Cir. 2005)). “A finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
III. DISCUSSION
A. Ineffective Assistance of Counsel
A prisoner alleging that he received ineffective assistance of counsel in
violation of the Sixth Amendment must establish two elements. Strickland v.
22
Case: 17-12524 Date Filed: 08/30/2019 Page: 23 of 73
Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that
counsel’s performance was deficient.” Id. In other words, he must show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. “Second, the defendant
must show that the deficient performance prejudiced the defense.” Id. We discuss
each of these elements in turn.
1. Deficient Performance
A “doubly” deferential lens sits before our eyes as we review the
performance of Jenkins’s counsel during the penalty phase. Richter, 562 U.S. at
105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). This redoubled
deference arises out of the tandem application of AEDPA’s “highly deferential”
review of a state court’s decision with Strickland’s “highly deferential” review of
an attorney’s performance. Id. (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7
(1997), and Strickland, 466 U.S. at 689). Under the Strickland standard, “counsel
is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466
U.S. at 690. And under AEPDA, we must deny habeas relief if “there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Richter, 562 U.S. at 105.
23
Case: 17-12524 Date Filed: 08/30/2019 Page: 24 of 73
Jenkins argues that his counsel performed deficiently by failing to
“investigate compelling mitigating evidence or develop a penalty-phase theory.”
The state court disagreed. It quoted decisions of our Court that hold that “there is
no per se rule that evidence of a criminal defendant’s troubled childhood must
always be presented as mitigating evidence.” Jenkins, 972 So. 2d at 144 (quoting
Marek v. Singletary, 62 F.3d 1295, 1300 (11th Cir. 1995)). Noting that “Downey
was in charge of the penalty phase” but “we do not have the benefit of Downey’s
testimony as to what occurred and why,” it reviewed the trial record to find that
“counsel argued residual doubt and Jenkins’s good character at the penalty phase.”
Id. at 145–46. It concluded that “Downey’s decision to concentrate on reasonable
doubt and to portray Jenkins as a good person was reasonable under the
circumstances.” Id. at 147.
Jenkins insists, however, that counsel’s failure to develop mitigating
evidence about his childhood abuse was “not the product of strategy, but rather
arose from ingnorance and inexeperiance [sic].” The problem for Jenkins is that,
like the state courts, this Court also does not know what Downey did or why. The
record is silent as to his thoughts and intentions as he prepared for the penalty
phase. Given that Jenkins bore the burden of overcoming the strong presumption of
competence and of proving Downey’s deficient performance, we are perplexed
why Jenkins’s new counsel did not have Downey testify or submit an affidavit in
24
Case: 17-12524 Date Filed: 08/30/2019 Page: 25 of 73
the Rule 32 proceeding. See Strickland, 466 U.S. at 687 (“The defendant must
show that counsel’s performance was deficient.”). Nor did Jenkins testify to the
substance of his conversations with his counsel. “The reasonableness of a trial
counsel’s acts, including lack of investigation or excluding character witnesses
from the sentencing phase, depends ‘critically’ upon what information the client
communicated to counsel.” Chandler v. United States, 218 F.3d 1305, 1324 (11th
Cir. 2000) (en banc) (quoting Strickland, 466 U.S. at 691). There is simply no
record evidence to support Jenkins’s central assertion that Downey made no
tactical choices in his preparation for the penalty phase.
Jenkins instead relies on Scofield’s Rule 32 testimony about how he and
Downey prepared for the trial and sentencing. We acknowledge that Scofield
repeatedly testified that he did not really know what he was doing and that he
failed to make strategic choices with respect to mitigating circumstances and
sentencing. But Scofield was equally clear that Downey—the more experienced
lawyer—was in fact responsible for the penalty phase. And Scofield also
repeatedly testified that he did not know what Downey may or may not have done
to prepare. Furthermore, his lack of knowledge about Downey’s preparation was
understandable. He and Downey were not colleagues who shared an office and
might reasonably be expected to know what the other was doing much of the time.
Scofield and Downey did not even work in the same city.
25
Case: 17-12524 Date Filed: 08/30/2019 Page: 26 of 73
This case is unlike those in which we have found deficient performance
where the record showed that counsel investigated insufficiently because he
“waited until the eleventh hour” to begin preparing for the penalty phase while
faced with “overwhelming evidence of guilt.” See, e.g., Johnson v. Sec’y, D.O.C.,
643 F.3d 907, 932 (11th Cir. 2011). The limited record that Jenkins developed
establishes that Downey spent at least 71 hours preparing for trial, spread out over
17 months. The state court interpreted this sparse record as reflecting a penalty-
phase strategy of residual doubt, the logical extension of Downey’s guilt-phase
investigation of the evidence and Scofield’s pursuit at trial of an acquittal based on
reasonable doubt. See Jenkins, 972 So. 2d at 147. In such a situation, “[a] lawyer’s
time and effort in preparing to defend his client in the guilt phase of a capital case
continues to count at the sentencing phase.” Tarver v. Hopper, 169 F.3d 710, 715
(11th Cir. 1999).
We decline to dictate how many hours or how many sessions an attorney
must spend interviewing his counsel in order to provide effective assistance. “No
absolute rules dictate what is reasonable performance for lawyers.” Chandler, 218
F.3d at 1317 (citing Strickland, 466 U.S. at 688–89). But even this limited record
undermines Jenkins’s assertion that Downey prepared inadequately. Downey’s 71
hours of preparation included 35 hours of jailhouse conversations with Jenkins
26
Case: 17-12524 Date Filed: 08/30/2019 Page: 27 of 73
during 18 separate meetings.7 According to Downey’s notes, Scofield was present
for only five of those meetings (12 hours’ worth), leaving 23 hours over 13
meetings between Jenkins and Downey alone. Downey’s notes reveal little about
the content of those conversations beyond broad notations such as “evidence,
witnesses, general status,” and discussions with Jenkins of the evidence and
testimony against him were surely relevant to Downey’s penalty-phase strategy of
residual doubt.
But the record does not reveal that Downey knew or should have known that
Jenkins’s childhood merited investigation beyond that which he may have done.
The record shows that Downey developed enough of a rapport with Jenkins that,
according to his fee declaration, he “g[ave a] Christmas gift [and] discuss[ed] how
much to tell his family.” But how much Downey knew about Jenkins’s family
background can only be guessed from Scofield’s Rule 32 hearing testimony.
Scofield testified that he discussed Jenkins’s background during his dozen or so
jailhouse meetings with him, and that Downey was present for some of those
meetings. Scofield—and possibly Downey—learned that Jenkins experienced
abuse as a child, that his stepfather was brutal, and that he lived on the streets and
7
We note that the state court clearly erroneously stated that Downey’s fee declaration
documented 171 hours of pretrial preparation. See Jenkins, 972 So. 2d at 137. However, the state
court accurately stated that “he spent over 25 hours talking with Jenkins in more than 10 visits to
the jail.” Id. That statement was not an unreasonable determination of the facts.
27
Case: 17-12524 Date Filed: 08/30/2019 Page: 28 of 73
in juvenile institutions because of his brutal home life. It is against this backdrop
that Downey’s presumptive “decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments.” Strickland, 466 U.S. at 691.
That assessment depends a great deal on what Jenkins told his counsel about
his background. See id. But we do not know whether Downey was present when
Scofield learned about Jenkins’s childhood abuse, nor what else Downey may have
learned during his 13 solo discussions with Jenkins. Therefore, “given the absence
of evidence in the record, we must assume counsel carried out his professional
responsibility and discussed mitigation with his client.” Chandler, 218 F.3d at
1324. We will not “turn that presumption on its head by giving [Jenkins] the
benefit of the doubt where it is unclear what [Downey] did or did not do.” Williams
v. Head, 185 F.3d 1223, 1235 (11th Cir. 1999). We will not assume that Jenkins
told Downey more than he told Scofield, and Scofield denied remembering that
Jenkins told him about the severity or frequency of his stepfather’s physical abuse.
He denied remembering Jenkins telling him about being beaten daily, being locked
in his room 24/7, or being forced to eat his feces. And there is no suggestion in the
record that counsel knew or had reason to investigate the allegation of sexual abuse
by his stepgrandfather. The record simply does not reflect that Jenkins told either
of his lawyers about the severe abuse that some of the Rule 32 witnesses later
28
Case: 17-12524 Date Filed: 08/30/2019 Page: 29 of 73
described. We will not fault those lawyers for failing to present as mitigation this
limited evidence that they may have reasonably believed to be unremarkable. See
Strickland, 466 U.S. at 691.
To be sure, counsel’s failure “to discover all reasonably available mitigating
evidence” may constitute deficient performance in some cases. Wiggins v. Smith,
539 U.S. 510, 524 (2003) (quoting ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases § 11.4.1(C) (1989)). Our Court
has identified deficient performance in several instances where counsel had good
reason to investigate the defendant’s background but failed to do so. See Morrow,
886 F.3d at 1147 (collecting cases). But we assess “a particular decision not to
investigate . . . for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Thus,
we have rejected a hard rule that counsel’s “strategic decisions can be considered
reasonable only if they are preceded by a ‘thorough investigation.’” Williams, 185
F.3d at 1237 (quoting Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994)). Because
we simply do not know why Downey chose not to investigate Jenkins’s childhood
more thoroughly, Downey is entitled to the presumption that this strategic decision
was reasonable.
And though we have also rejected “a per se rule of ineffective assistance
where counsel does not consult family members,” Holladay v. Haley, 209 F.3d
29
 Case: 17-12524 Date Filed: 08/30/2019 Page: 30 of 73
1243, 1252 (11th Cir. 2000), we note that Downey did not fail altogether to consult
family members. Downey had at least one substantive conversation with Jenkins’s
grandmother, and we know from her Rule 32 hearing testimony that she never
witnessed Jenkins’s childhood abuse. Given the silence of the record and the strong
presumption of competence to which Downey is entitled, we decline to fault him
for not doing more when Jenkins and his grandmother did not and could not,
respectively, provide a basis for doing so. Cf. United States v. Pease, 240 F.3d 938,
941–92 (11th Cir. 2001) (“we cannot say as a matter of law that reliance on a
client’s statements is per se deficient performance”). Nor did Jenkins’s counsel
have an absolute duty to put on abusive-childhood evidence, even if they knew of
it. See Chandler, 218 F.3d at 1319 (“Counsel is not required to present every
nonfrivolous defense; nor is counsel required to present all mitigation evidence,
even if the additional mitigation evidence would not have been incompatible with
counsel’s strategy.”); Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en
banc) (“Our decisions are inconsistent with any notion that counsel must present
all available mitigating circumstance evidence.”).
Instead, we affirm as a reasonable application of Strickland the state court’s
conclusion that Downey’s strategic decision to emphasize residual doubt was
reasonable. See Jenkins, 972 So. 2d at 147. As we have noted, “[a] lawyer’s time
and effort in preparing to defend his client in the guilt phase of a capital case
30
Case: 17-12524 Date Filed: 08/30/2019 Page: 31 of 73
continues to count at the sentencing phase.” Tarver, 169 F.3d at 715. This
reasoning is especially applicable where, as here, counsel pursued the reasonable
strategy of arguing for acquittal at the guilt phase and for life at the sentencing
phase by highlighting doubt about the evidence. “[R]esidual doubt is perhaps the
most effective strategy to employ at sentencing.” Chandler, 218 F.3d at 1320 n.28.
“[E]specially when—as in this case—the evidence of guilt was not overwhelming,
we expect that petitioners can rarely (if ever) prove a lawyer to be ineffective for
relying on this seemingly reasonable strategy to defend his client.” Id. at 1320
(footnote omitted); see also Tarver, 169 F.3d at 715–16 (collecting law review
articles on the merits of residual-doubt strategy). Not only can such a strategy be
constitutionally adequate, in some cases it may be “the most effective performance
in defense to the death penalty.” Tarver, 169 F.3d at 716.
We cannot say that Downey’s manifest strategy of residual doubt was
objectively unreasonable under the circumstances. Jenkins’s case is precisely the
sort where reminding the jury of the misgivings it may have held about the State’s
case could have been effective. Scofield’s guilt-phase closing argument from that
very morning, which explicitly emphasized doubt and the weakness of the State’s
evidence, would have been fresh in the minds of the jury.8 Although we are not
8
During the penalty phase of a capital case, “[e]vidence presented at the trial of the case may be
considered insofar as it is relevant to the aggravating and mitigating circumstances without the
necessity of re-introducing that evidence at the sentence hearing.” Ala. Code § 13A-5-45(c).
31
Case: 17-12524 Date Filed: 08/30/2019 Page: 32 of 73
questioning the jury’s guilty verdict or the sufficiency of the evidence, which are
beyond the scope of our habeas review, we acknowledge that the State’s case
against Jenkins was—as Downey reminded the jury during the penalty phase—
entirely circumstantial. Indeed, Scofield maintained post-conviction that the case
for reasonable doubt was “[v]ery strong.” No one saw Jenkins commit either the
murder or the robbery and kidnapping that elevated Hogeland’s murder to a capital
crime. Scofield’s guilt-phase closing argument challenged the inferential leaps the
State was asking the jury to make in finding that Jenkins committed these capital-
predicate offenses and that he formed the intent to kill. This situation was not one
where a guilt-phase strategy of acquittal—and therefore a penalty-phase strategy of
residual doubt—was unreasonable in light of the evidence. Cf. Johnson, 643 F.3d
at 932–33 (deficient sentencing investigation where defendant had confessed to
two murders).
Thus, although Downey’s penalty-phase closing argument did not
specifically invoke lingering doubt, it clearly reminded the jury of the entirely
circumstantial nature of the State’s guilt-phase case. See Chandler, 218 F.3d at
1320 & n.6 (a strategy of “focus[ing] on obtaining an acquittal and then, at
sentencing, on lingering doubt” is reasonable, even if counsel does not use the
words “lingering doubt” or “residual doubt”). Downey closed this reminder by
explaining to the jury how a foundational ancient legal system proscribed capital
32
Case: 17-12524 Date Filed: 08/30/2019 Page: 33 of 73
punishment in the absence of eyewitness testimony—the exact situation here. The
state court found that Downey’s penalty-phase closing argument reflected a
strategic “decision to concentrate on reasonable doubt,” see Jenkins, 972 So. 2d at
147, a tactical choice entitled to a “strong presumption of correctness,” Marek, 62
F.3d at 1300 & n.3.
Jenkins suggests other theories of mitigation that Downey might have more
effectively pursued,9 but our deferential review under Strickland does not ask
whether counsel could possibly or ideally have been more effective. “The test for
ineffectiveness is not whether counsel could have done more.” Waters, 46 F.3d at
1518. We do not ask whether an attorney’s representation “deviated from best
practices or common custom,” and we should resist the temptation to second-guess
an attorney with the benefit of our hindsight. Richter, 562 U.S. at 105. We ask only
“whether, in light of all the circumstances, the identified acts or omissions were
9
In particular, Jenkins argues that his counsel should have presented “model prisoner” evidence.
The state court noted, “Good conduct during pretrial incarceration is not necessarily a mitigating
circumstance,” before finding that Jenkins had not met his burden of establishing that his counsel
even had information about his conduct in jail. Jenkins, 972 So. 2d at 149. We agree, and we
decline to impose a requirement of sua sponte investigation of this kind in every capital case. Cf.
Williams, 529 U.S. at 396 (finding deficient performance based in part on not returning a call
from a prison ministry volunteer who offered to vouch for defendant’s good behavior in prison).
“Surely, counsel is not required to call a witness to testify to facts such as lack of violent nature
when the jury has rejected such an approach and has found that the defendant is guilty of
murder.” Griffin v. Wainwright, 760 F.2d 1505, 1512 (11th Cir. 1985), vacated on other grounds,
476 U.S. 1112 (1986), reaff’d, 874 F.2d 1397 (11th Cir. 1989).
33
Case: 17-12524 Date Filed: 08/30/2019 Page: 34 of 73
outside the range of professionally competent assistance.” Strickland, 466 U.S. at
690.
We conclude that the state court did not unreasonably determine that Jenkins
failed to establish objectively incompetent performance by his counsel during the
penalty phase of his trial. Our inquiry is not “what the best lawyers would have
done. Nor is the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial. . . . We are not interested in grading lawyers’
performances.” White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). And
“[i]f fairminded jurists could reasonably disagree” about the reasonableness of
counsel’s performance, “then habeas relief is due to be denied.” Johnson, 643 F.3d
at 932.
2. Prejudice
Even if Jenkins had demonstrated that his counsel performed as no
reasonable lawyer could have, he must also demonstrate a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Given that the jury here
recommended a sentence of death by the narrowest possible vote, 10 to 2, Jenkins
need establish only “a reasonable probability that at least one juror would have
struck a different balance” between life and death. Wiggins, 539 U.S. at 537. “A
34
Case: 17-12524 Date Filed: 08/30/2019 Page: 35 of 73
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In measuring that probability here, we will
“evaluate the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding in reweighing it against
the evidence in aggravation.” Williams, 529 U.S. at 397–98.
We begin our analysis by clarifying what exactly Jenkins is arguing about
prejudice. We do not know precisely which aggravating and mitigating factors the
jury may have implicitly found before making its recommendation of death. The
trial court found at sentencing two statutory aggravating factors: the robbery and
the kidnapping of the victim. See Ala. Code § 13A-5-49(4). Because none of the
mitigation evidence offered in the Rule 32 hearing bears on those factors, we see
no reasonable probability that the aggravating factors would have been determined
differently by the jury or the court. The court also found at sentencing two
statutory mitigating factors: no significant history of prior criminal activity and
age. See id. § 13A-5-51(1), (7). There was also strong evidence of Jenkins’s
intoxication, which was a key part of Jenkins’s guilt-phase defense and could have
supported a third mitigating factor, impaired capacity. See id. § 13A-5-51(6).10
10
The jury had heard evidence about all three of these statutory mitigators during the guilt phase
of the trial. Downey’s penalty-phase opening statement reviewed for the jury all seven of the
possible statutory mitigating factors, and the court also recited them in its jury instructions,
reminding the jury that they could consider guilt-phase evidence as well as non-statutory
mitigation. Jenkins has not established that there is a substantial probability that the jury’s
recommendation would have been different had it been more explicitly reminded of Jenkins’s
35
Case: 17-12524 Date Filed: 08/30/2019 Page: 36 of 73
Jenkins does not argue that the jury or the court would have found other statutory
mitigators in light of the Rule 32 evidence. Rather, he contends that the jury might
have found non-statutory mitigation based on Jenkins’s abusive childhood, low
intelligence, or mental health problems that would have outweighed the
aggravating factors.11
The Rule 32 trial court found that Jenkins had not demonstrated prejudice
even assuming that counsel had performed deficiently. See Jenkins, 972 So. 2d at
138. It concluded that he had not shown a reasonable probability that the sentencer
“would have concluded that a weighing of the aggravating and mitigating
circumstances did not warrant death” upon a reweighing of the evidence. See id. It
emphasized the depravity of the crime and the aggravating circumstances and
found that the mitigating witnesses were not credible for various reasons. See id.
The state appellate court affirmed, declining to disturb the credibility
determinations of the trial court. Id. at 142–44. Independently reweighing the
age, criminal history, and intoxication, given that the trial court, the Rule 32 trial court, and the
state appellate court all explicitly considered those mitigators and found them outweighed by the
aggravators.
11
Alabama law lists seven statutory mitigating circumstances, but states that mitigation “shall
. . . not be limited to” those seven circumstances. Ala. Code § 13A-5-51. Further, “mitigating
circumstances shall include any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant offers as a basis for a sentence of life
imprisonment without parole instead of death, and any other relevant mitigating circumstances
which the defendant offers as a basis for a sentence of life imprisonment without parole instead
of death.” Id. § 13A-5-52. A jury may recommend a sentence of death only if it finds that “one or
more aggravating circumstances . . . exist and that they outweigh the mitigating circumstances, if
any.” Id. § 13A-5-46(e)(3).
36
Case: 17-12524 Date Filed: 08/30/2019 Page: 37 of 73
evidence, it concluded that, “[g]iven the aggravating circumstances that were
proven by the State and the facts surrounding Hogeland’s murder, we, like the
circuit court, are confident that death was the appropriate punishment for Jenkins’s
actions.” Id. at 148.
Our review of this evidence does not show that it is likely that the jury
would have concluded that death was not the appropriate punishment if it had
heard the Rule 32 evidence. Much of the proffered mitigation evidence is, in our
view, much less mitigating than Jenkins asserts. In particular, the testimony of
Jenkins’s older brother Michael was likely to have been a double-edged sword. See
Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1327 (11th Cir. 2013) (en banc) (“it
is reasonable to conclude that a defendant was not prejudiced when his mitigation
evidence was a two-edged sword” (quoting Ponticelli v. Sec’y, Fla. Dep’t of Corr.,
690 F.2d 1271, 1296 (11th Cir. 2012)). Michael was the closest relative to testify at
the Rule 32 hearing and his testimony about the abuse Jenkins experienced should
have been the most reliable, since he experienced much of the same physical abuse
himself. The brothers shared the same filthy bedroom, received beatings from the
same paddle, and were frequently absent from school together. But Michael’s
testimony contained some discrepancies, and he admitted to cognitive and memory
problems. Perhaps Michael’s testimony would have made Jenkins appear more
sympathetic in the eyes of the jury—but perhaps not. While Jenkins ran away from
37
Case: 17-12524 Date Filed: 08/30/2019 Page: 38 of 73
home and eventually committed murder, Michael responded to the same
background by running away from home, graduating from high school, and
providing health care for both the terminally ill and people with substance use
disorders. It is possible that the jury could even have found Jenkins to be more
culpable for not overcoming his difficult upbringing and to pose more of a danger
of future violence.
We also find reasonable the state court’s identification of other problems
with the mitigating evidence Jenkins argues should have been presented. Hearing
that evidence firsthand in the Rule 32 proceeding, the trial court found the
testimony of the cousins less credible in light of the lack of physical abuse
documented in the school health records. See Jenkins, 972 So. 2d at 139 (noting
that school records observed a rash and gingivitis). It faulted Pitts in particular for
purporting to have witnessed ongoing, severe abuse but taking only minimal,
ineffective steps to obtain outside help. See id. It further noted that DeLavega and
Wagoner actually testified that they never saw Jenkins beaten, and it noted all of
the witnesses’ interest in getting Jenkins off death row. All of these factors would
likely have caused a reasonable jury to discount their testimony. See id. at 139–42.
We must accept the trial court’s views of the Rule 32 testimony. “In the absence of
clear and convincing evidence, we have no power on federal habeas review to
revisit the state court’s credibility determinations.” Bishop v. Warden, 726 F.3d
38
 Case: 17-12524 Date Filed: 08/30/2019 Page: 39 of 73
1243, 1259 (11th Cir. 2013) (citing Marshall v. Lonberger, 459 U.S. 422, 434
(1983)).
The state court also noted that Wagoner testified that she was not available
to testify at the trial, and it found that Seal’s testimony would have been
cumulative to that of her husband. Thus, counsel’s failure to call those two
witnesses could not have been prejudicial to Jenkins. See id. at 141, 142. Neither of
these conclusions involves an unreasonable determination of the facts. We agree
that the Rule 32 testimony of Sherry Seal was substantially similar to the testimony
of her husband Lonnie Seal that the jury heard during the penalty phase. Both
testified about meeting Jenkins in California, Jenkins’s assistance with their move
to Alabama, and his residence with them in their Alabama home. Sherry added
only that Jenkins sometimes wet his bed. It was not unreasonable for the state court
to conclude that Sherry’s testimony was cumulative of her husband’s, and “a
petitioner cannot satisfy the prejudice prong of the Strickland test with evidence
that is merely cumulative of evidence already presented.” Rose v. McNeil, 634 F.3d
1224, 1243 (11th Cir. 2011).
Further, the school, medical, and juvenile court records that Jenkins
introduced in the Rule 32 proceeding have their own problems. As noted, they do
not document or even corroborate the severe level of abuse alleged by some of the
witnesses. Though these documents tell a sad story, they do not create a substantial
39
Case: 17-12524 Date Filed: 08/30/2019 Page: 40 of 73
likelihood that the jury would have recommended life. Although they portray
Jenkins as a victim of truly unfortunate circumstances, they also show his unsavory
delinquent behavior. That delinquency included a history of stealing cars, and
given that the jury likely inferred that Jenkins stole the red Mazda, new
information about his history of theft may not have been especially mitigating.
Similarly, we agree with the state court that evidence of Jenkins’s compliant
conduct in pretrial detention is “minimally mitigating” where there had been no
evidence of jail misconduct as an aggravator. See Jenkins, 972 So. 2d at 149; cf.
Skipper v. South Carolina, 476 U.S. 1, 5 & n.1 (1986) (good jail behavior is
“potentially mitigating” especially “[w]here the prosecution specifically relies on a
prediction of future dangerousness in asking for the death penalty”).
Jenkins argues that allowing the jury to see his experience of mental,
emotional, and cognitive difficulties, compounded by years of abuse and neglect
and considered alongside his mild character and good jail behavior as an adult,
would have convinced them that Hogeland’s murder was an “aberration” that
deserved a punishment less severe than death. That interpretation of Jenkins’s life
story may be conceivable. But more than mere conceivability is required to
establish prejudice: “The likelihood of a different result must be substantial, not
just conceivable.” Richter, 562 U.S. at 112 (emphasis added). We do not find the
state court’s decision that a different result was not substantially likely to be an
40
Case: 17-12524 Date Filed: 08/30/2019 Page: 41 of 73
unreasonable application of Strickland. As we have noted, we think it equally
likely that the jury could have rejected this alternate narrative out of hand in light
of having just convicted him of the violent murder of a young mother. We also
think it possible that the jury could have viewed the murder as just one step in a
logical progression of degeneracy that began with behavioral problems at school,
continued through the juvenile court system, and escalated past grand theft auto
into kidnapping and murder. Taken separately as well as together, the proffered
evidence does not compel us to conclude that a verdict of life would have been
substantially likely. Because fairminded jurists could disagree about the state
court’s conclusion about Strickland prejudice, we affirm the denial of habeas relief
on this ground.
B. Intellectual Disability
Jenkins argues that the district court erred when it denied his claim that he is
intellectually disabled and ineligible for the death penalty under Atkins v. Virginia,
536 U.S. 304 (2002). The Supreme Court held in Atkins that executing an offender
who has mental retardation12 violates the Eighth Amendment’s ban on excessive
12
In 2002, the Atkins Court followed prevailing convention in referring to “mentally retarded”
offenders. We will use that now-disfavored term only when quoting or discussing older sources.
Since 2014, the Supreme Court has exclusively used the terms “intellectually disabled person”
and “person with intellectual disability.” See, e.g., Hall v. Florida, 572 U.S. 701, 704 (2014);
Moore v. Texas, 139 S. Ct. 666, 672 (2019).
41
Case: 17-12524 Date Filed: 08/30/2019 Page: 42 of 73
punishments. Id. at 321. It defined mental retardation by quoting the American
Association on Mental Retardation:
Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual
functioning, existing concurrently with related limitations in two or
more of the following applicable adaptive skill areas: communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure, and work. Mental
retardation manifests before age 18.
Id. at 308 n.3. Alabama courts have followed that tripartite definition, adopting
what they consider the “broadest” definition of mental retardation for Atkins
purposes:
[A] defendant, to be considered mentally retarded, must have
significantly subaverage intellectual functioning (an IQ of 70 or
below), and significant or substantial deficits in adaptive behavior.
Additionally, these problems must have manifested themselves during
the developmental period (i.e., before the defendant reached age 18).
Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002).
The clinical evidence adduced during the Rule 32 hearing with respect to
Jenkins’s intellectual ability was that his IQ was 76, reflecting “borderline
intellectual functioning.” The record also included the report of the Lunacy
Commission13 which found that Jenkins was competent to stand trial, as well as
13
Alabama law requires a capital defendant to be “committed to the Department of Mental
Health and Mental Retardation for examination” if there is a question about his capacity to stand
trial or if there will be a mental-disease-or-defect defense. Ala. Code § 15-16-22(a). “The
assigned mental health professional(s) shall examine the defendant with respect to determining
the presence of any mental disease or defect which, if determined to be present, would affect the
42
Case: 17-12524 Date Filed: 08/30/2019 Page: 43 of 73
Jenkins’s school and juvenile court records. The court also considered all the
testimony it had heard about Jenkins and reviewed the transcript of his murder trial
before rejecting Jenkins’s claim of mental retardation.
On appeal, after reciting the Perkins standard, the Alabama Court of
Criminal Appeals explained that Jenkins had not established mental retardation:
Dr. Kirkland testified that he performed psychological tests on Jenkins
and that Jenkins’s IQ was 76. 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. The record fails to show that Jenkins
meets the most liberal view of mental retardation adopted by the
Alabama Supreme Court in Perkins.
Jenkins, 972 So. 2d at 155. In this habeas appeal, Jenkins raises arguments about
all three components of the intellectual disability showing under Atkins and
Perkins, which we address in turn. He also appeals the denial of an evidentiary
hearing on this issue.
1. Intellectual Function
The first component of intellectual disability under Perkins is “significantly
subaverage intellectual functioning (an IQ of 70 or below).” Perkins, 851 So. 2d at
456. Jenkins argues that the use of a strict IQ cutoff of 70 was contrary to or an
unreasonable application of Atkins.
capacity of the defendant to proceed or continue to trial or which would affect the defendant’s
criminal responsibility at the time of the commission of the crime.” Id.
43
Case: 17-12524 Date Filed: 08/30/2019 Page: 44 of 73
We disagree. The state court’s decision that Jenkins failed to establish
mental retardation in this respect was a reasonable application of the record and of
Atkins. As a threshold matter, we note that the state court did not say it was
applying a strict cutoff of 70; it merely stated that Dr. Kirkland had measured
Jenkins’s IQ as 76. Jenkins, 972 So. 2d at 155. Under our deferential review, the
question is whether the decision that Jenkins had not established the intellectual
functioning aspect of intellectual disability was an unreasonable application of
Atkins. The Supreme Court explained in Atkins that it was leaving “to the State[s]
the task of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.” Atkins, 536 U.S. at 317 (quoting Ford v.
Wainwright, 477 U.S. 399, 416–17 (1986)). In line with that invitation, our Circuit
has accepted Alabama’s judicial definition of intellectual disability as laid out in
Perkins.14 See Thomas, 607 F.3d at 752–53. Jenkins objects, however, that the
Perkins standard, which he characterizes as articulating a “strict cutoff” of 70,
conflicts with more recent Supreme Court precedent that instead requires a
“clinical” definition that goes beyond a single IQ score.
In particular, Jenkins points to Hall v. Florida, in which the Supreme Court
held that when an offender’s IQ is near but greater than 70, courts must take into
14
Notwithstanding the urging of the Alabama Supreme Court, see Perkins, 851 So. 2d at 455
n.1, the Alabama legislature has not enacted a statutory definition of intellectual disability.
44
Case: 17-12524 Date Filed: 08/30/2019 Page: 45 of 73
account the IQ test’s standard error of measurement as well as non-IQ evidence of
intellectual function. See Hall v. Florida, 572 U.S. 701, 723 (2014) (“This Court
agrees with the medical experts that when a defendant’s IQ test score falls within
the test’s acknowledged and inherent margin of error, the defendant must be able
to present additional evidence of intellectual disability, including testimony
regarding adaptive deficits.”). But, as Jenkins concedes, our Circuit has
specifically held that Hall is not retroactive to cases on collateral review. See In re
Henry, 757 F.3d 1151, 1161 (11th Cir. 2014) (explaining that Hall does not supply
a new substantive rule but rather “merely provides new procedures for ensuring
that States do not execute members of an already protected group”). We also note
that Alabama courts have found the Perkins standard to comport with Hall in that
it does not prevent an offender from presenting the standard error of measurement
or non-IQ evidence of intellectual disability. See Reeves v. State, 226 So. 3d 711,
728–29 (Ala. Ct. Crim. App. 2016). Here, the state court did not unreasonably
apply Atkins when it analyzed the intellectual functioning component of
intellectual disability.
Jenkins also argues that the state court’s decision on this component in his
Rule 32 proceeding resulted from an unreasonable determination of the facts. He
asserts that his IQ score of 76, when combined with the test’s standard error of
measurement and considered alongside the Flynn effect (which we discuss below),
45
Case: 17-12524 Date Filed: 08/30/2019 Page: 46 of 73
does show that he has significantly subaverage intellectual function. For the
reasons that follow, we disagree.
Most fundamentally, neither of the clinicians who testified about Jenkins’s
intellectual ability in the Rule 32 hearing opined that he was mentally retarded.
The closest thing Jenkins can point to is the testimony of Dr. Kirkland that his IQ
is two standard deviations below the mean. But his entire testimony, in context, did
not establish intellectual disability. To the contrary: Dr. Kirkland testified that
Jenkins “scored in the range of borderline intellectual functioning which is
between mild mental retardation and low average intellectual functioning.”
Furthermore, Jenkins’s own expert Dr. Lisak fully reviewed Dr. Kirkland’s clinical
findings. He agreed with those findings, concluding that the IQ results show
“borderline intelligence.” It is tremendously significant that no clinical assessment
in the entire record of these proceedings has found that Jenkins has mental
retardation or intellectual disability.
Jenkins nonetheless argues that his IQ score of 76 establishes the intellectual
component of intellectual ability when the standard error of measurement and the
Flynn effect are considered alongside that score. It was not unreasonable for the
state court to disagree. As we have discussed, Jenkins is not retroactively entitled
to have the state courts take into account the margin of error of the IQ test. That
statistical margin of error—5 points in this case—takes into account characteristics
46
Case: 17-12524 Date Filed: 08/30/2019 Page: 47 of 73
of the test and variations due to chance in order to state how confident the tester is
that the measured result accurately states Jenkins’s true, unknowable IQ. A result
of 76 with a standard error of measurement of 5 simply means that the tester is
68% confident that Jenkins’s true IQ falls between 71 and 81, and 95% confident
that his true IQ falls between 66 and 86. See David H. Kaye & David A. Freedman,
Reference Guide on Statistics, in Reference Manual on Scientific Evidence 211,
243–44 (3d ed. 2011); see also Hall, 572 U.S. at 738–39 (Alito, J., dissenting). Of
course, Jenkins would like us to consider only the possibility that the test result
overstated his IQ—but the standard error of measurement is a two-way street.
“[T]he standard error of measurement is a bi-directional concept that does not
carry with it a presumption that an individual’s IQ falls to the bottom of his IQ
range.” Ledford v. Warden, Ga. Diag. & Clas. Prison, 818 F.3d 600, 641 (11th Cir.
2016).
Even if Jenkins were somehow entitled to subtract the 5-point margin of
error from his score and thereby lower his “true” IQ to 71, he still would not satisfy
the clinical intellectual component of intellectual disability. Thus, he sought in the
district court to introduce evidence about the Flynn effect in order to bring his IQ
down to 70 or below. As our Court has explained, the Flynn effect “recognizes the
fact that IQ test scores have been increasing over time”:
The Flynn effect acknowledges that as an intelligence test ages, or
moves farther from the date on which it was standardized, or normed,
47
Case: 17-12524 Date Filed: 08/30/2019 Page: 48 of 73
the mean score of the population as a whole on that assessment
instrument increases, thereby artificially inflating the IQ scores of
individual test subjects. Therefore, the IQ test scores must be
recalibrated to keep all test subjects on a level playing field.
Thomas, 607 F.3d at 753. We have said that “[a]n evaluator may also consider the
‘Flynn effect’” in assessing an offender’s possible intellectual disability, id.
(emphasis added), but neither we nor the Alabama Supreme Court nor the U.S.
Supreme Court have said that a court must consider it in order to reasonably apply
Atkins. See, e.g., Reeves, 226 So. 3d at 739 (“This Court has repeatedly held that a
circuit court is not required to accept, consider, or apply the ‘Flynn Effect’ in
determining intellectual disability.”).
More problematically, Jenkins did not raise the Flynn effect issue in the
Alabama state courts. Jenkins asserts that he implicitly raised it as part and parcel
of his Atkins claim during his Rule 32 appeal, but we do not agree that the
Alabama courts had a full and fair opportunity to consider this issue, because it
was not explicitly presented to them. See Kelley v. Sec’y for the Dep’t of Corr., 377
F.3d 1317, 1349–50 (11th Cir. 2004) (holding that one ineffective-assistance
argument was unexhausted despite the petitioner’s general presentation of a
Strickland claim in the state courts). Thus, under AEDPA, Jenkins is procedurally
barred from raising this unexhausted claim in his federal habeas petition. See 28
U.S.C. § 2254(b)(1)(A), (c); Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010).
We will allow a prisoner to overcome a procedural bar if he establishes cause for
48
Case: 17-12524 Date Filed: 08/30/2019 Page: 49 of 73
his default and prejudice therefrom. See, e.g., Smith v. Jones, 256 F.3d 1135, 1138
(11th Cir. 2001). But Jenkins cannot establish prejudice from being barred from
asserting this claim now because the Supreme Court has not “clearly established”
that a court must consider the Flynn effect in assessing intellectual disability. Thus,
under AEDPA, it could not form the basis for a federal habeas claim. See 28
U.S.C. § 2254(d)(1). We therefore conclude that the state court did not
unreasonably determine the facts or unreasonably apply Atkins with respect to the
intellectual component of intellectual disability.
2. Adaptive Function
The second component of intellectual disability is “significant or substantial
deficits in adaptive behavior.” Perkins, 851 So. 2d at 456. Jenkins argues that the
state court, which mentioned only Jenkins’s successes in employment and social
skills, see Jenkins, 972 So. 2d at 155, failed to consider his deficits. He adds that
even the mention of employment success does not tell the whole story. Jenkins
insists that his jobs were menial, his employers took advantage of him, and he held
the jobs for only a few months each.
But the state court’s terse discussion of Jenkins’s adaptive behavior did not
involve an unreasonable determination of the facts or an unreasonable application
of Atkins. To the contrary, its decision on this issue was reasonable in light of both
the record and Atkins.
49
Case: 17-12524 Date Filed: 08/30/2019 Page: 50 of 73
Atkins elaborated that the adaptive-skill component of intellectual disability
requires substantial present limitation in at least two of the following areas:
“communication, self-care, home living, social skills, community use, self-
direction, health and safety, functional academics, leisure, and work.” Atkins, 536
U.S. at 308 n.3 (quoting definition of American Association on Mental
Retardation). The record supports the state court’s judgment that Jenkins does not
have substantial deficits in at least two areas. To be sure, we will assume that
Jenkins may be substantially limited in functional academics; Dr. Kirkland
assessed his reading, spelling, and arithmetic skills at a third-grade level. But the
record does not compel a finding of substantial present deficits in the areas of
communication, self-care, home living, and work. Although Jenkins emphasizes
his transient employment, the record shows he was able to find work quickly, to
work hard to support the Seals’ household until Lonnie Seal found a job, and, later,
to move into his own home. That record evidence is inconsistent with a substantial
deficit in the area of work.
As the State observes, the facts of the crime also fail to show significant
deficits in the areas of communication, self-care, community use, and self-
direction. Jenkins was able to communicate well enough to solicit an alibi and to
sell his car, including writing out a bill of sale. He then was able to arrange for his
flight from Alabama, including purchasing a bus ticket and hitchhiking across the
50
Case: 17-12524 Date Filed: 08/30/2019 Page: 51 of 73
country. Indeed, throughout his trial and postconviction proceedings, the people
who knew Jenkins as an adult consistently described a man who did not have
serious difficulties in communicating, forming relationships, working, and caring
for himself. No witness mentioned these kinds of difficulties in his or her
testimony about Jenkins. There was some evidence that Jenkins was “not
articulate” and that his house was messy, but that testimony does not rise to the
level of overwhelming evidence of substantial functional deficits that would
support a conclusion that the state court unreasonably determined the facts.
Of course, the record also contains evidence of Jenkins’s childhood
academic and social deficits, attributable at least in part to his parents’ neglect, but
Jenkins’s childhood is not directly relevant to our consideration of his present
limitations. Although we acknowledge that the Supreme Court has noted that such
“risk factors” may support further exploration of the possibility of intellectual
disability, see Moore v. Texas, 137 S. Ct. 1039, 1051 (2017), the state court record
contains the results of that exploration. Overall, that record supports the state
court’s conclusion that Jenkins does not have substantial deficits in adaptive
behaviors.
3. Juvenile Onset
The third and final component of intellectual disability is manifestation of
the first and second components “before the defendant reached age 18.” Perkins,
51
Case: 17-12524 Date Filed: 08/30/2019 Page: 52 of 73
851 So. 2d at 456. Jenkins asserts, the State assumes, and we agree that the state
court did not rule upon this issue, so there is nothing to which we must defer under
AEDPA. See, e.g., Brumfield v. Cain, 135 S. Ct. 2269, 2282 (2015). Thus, we will
review the district court’s legal conclusions on this issue de novo, and its factual
findings for clear error. See, e.g., Grossman v. McDonough, 466 F.3d 1325, 1335
(11th Cir. 2006). Jenkins argues that he has satisfied the age-of-onset component
by showing “a wide range of evidence of deficits in both intellectual and adaptive
functioning throughout Jenkins’s childhood.”
In fact, the ample record of Jenkins’s childhood, as developed in the Rule 32
proceeding, does not point to intellectual disability before age 18. School
assessments at age 12 reported an IQ score of 83, an adaptive behavior rating of
“low,” and noted overall an intellectual capacity of “average,” a diagnosis of
dyslexia, and “poor functional skills.” The psychologist attributed Jenkins’s
difficulties to a combination of “[f]requent moves, changes in schools and family
instability” with “[l]ow ability coupled with a specific learning disability” and
“[l]ack of responsibility for self control and poor use of time.” Although Jenkins
failed several grades of school, teachers additionally attributed his difficulties to
his behavioral problems and his high number of absences from school.
Similarly, IQ tests ordered by the juvenile court at age 14 gave scores of 81
and 86 on different tests, in the “[d]ull–[n]ormal” range and reflecting “a definite
52
Case: 17-12524 Date Filed: 08/30/2019 Page: 53 of 73
learning disability.” These records all show a child with serious academic deficits
and some intellectual and adaptive deficits, but they do not clearly show an
intellectually disabled child. In particular, Jenkins’s childhood IQ scores of 83, 81,
and 86 fail to point to intellectual disability or mental retardation. We are not left
with the definite and firm conviction that the district court erred when it found that
“Jenkins’s [childhood] intelligence scores and adaptive functioning skills were
attributable to his learning disability and other circumstances in his life, rather than
mental retardation.”
In sum, we agree with the district court that the decision of the Alabama
Court of Criminal Appeals that Jenkins does not have intellectual disability was
not contrary to or an unreasonable application of Atkins v. Virginia.
4. Evidentiary Hearing
Finally, Jenkins argues that the district court erred when it denied his request
for an evidentiary hearing on his Atkins claim. If Jenkins diligently attempted to
present this claim in the state court, we review for abuse of discretion. Burgess v.
Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1320 (11th Cir. 2013). “The district
court abuses its discretion where ‘such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 474
(2007)). If Jenkins did not diligently attempt to develop the factual basis for this
53
Case: 17-12524 Date Filed: 08/30/2019 Page: 54 of 73
claim in the state court, absent certain circumstances, he is not entitled to a hearing
and we will affirm the district court’s denial. 28 U.S.C. § 2254(e)(2).
The parties strenuously dispute whether Jenkins diligently attempted to
present this issue in the state court. On the one hand, the State argues that Jenkins
failed to allege that he was mentally retarded even after the U.S. Supreme Court
decided Atkins in 2002. On the other hand, Jenkins asserts that he raised the
possibility of mental retardation as early as his original Rule 32 petition in 1995.
As we have noted, shortly after the Supreme Court decided Atkins, the
Alabama Court of Criminal Appeals ordered supplemental briefing on the possible
impact of Atkins on Jenkins. Jenkins’s Rule 32 appeal was pending at that point,
having been fully briefed and orally argued in the state appellate court. Having
reviewed the state court records, we agree with the State that Jenkins did not
diligently attempt to present his Atkins claim in the state courts.
“Diligence will require in the usual case that the prisoner, at a minimum,
seek an evidentiary hearing in state court.” Williams, 529 U.S. at 437. The record
clearly shows that Jenkins did not do so. In the initial supplemental brief on Atkins
he filed in 2002, Jenkins merely requested a future hearing after the Alabama
legislature’s enactment of a statute on executing the mentally retarded. Seventeen
years later, that contingency is still in the future. Only in his reply supplemental
brief did Jenkins then assert, for the first time ever, that he is mentally retarded.
54
Case: 17-12524 Date Filed: 08/30/2019 Page: 55 of 73
We acknowledge that Jenkins’s initial Rule 32 petition included in its
allegations of ineffective assistance of counsel a list of unpresented mitigating
evidence including his “developmental[] impair[ment]” and “learning disabilities,
low intelligence, poor comprehension and retarded socialization skills.” We
conclude that these tangential Strickland references to his mental and social
abilities do not amount to diligence. Thus, because Jenkins did not diligently
attempt to develop the factual basis for his Atkins claim in the state courts, we
affirm the district court’s denial of his request for an evidentiary hearing.
Even if Jenkins had diligently attempted to present this claim in the state
court, however, we conclude in the alternative that the district court did not abuse
its discretion when it denied a hearing. We agree, in light of the ample evidence
about intellectual ability that Jenkins adduced in support of his ineffective-
assistance claim, that such a hearing would not have enabled Jenkins to prove that
he is intellectually disabled. See Burgess, 723 F.3d at 1320.
IV. CONCLUSION
The denial of Jenkins’s petition for a writ of habeas corpus is
AFFIRMED.
55
Case: 17-12524 Date Filed: 08/30/2019 Page: 56 of 73
WILSON, Circuit Judge, dissenting:
Mark Jenkins must prove that the Alabama state courts acted unreasonably
in denying him post-conviction collateral relief. 28 U.S.C. § 2254(d)(1). Jenkins
has satisfied that burden as to his ineffective assistance of counsel claim. He has
also demonstrated that he is entitled to an evidentiary hearing regarding his Atkins
v. Virginia claim. Because the majority came to the opposite conclusions, I
dissent.
I. Ineffective Assistance of Counsel at Penalty Phase
Jenkins first asserts that his trial counsel’s failure to investigate Jenkins’
abusive upbringing and to present any mitigating evidence at the penalty phase of
his trial constituted ineffective assistance of counsel. The majority rejects this
contention, concluding that the Alabama state courts did not act unreasonably in
denying Jenkins’ ineffective assistance of counsel claim on collateral review. I
disagree and maintain that Jenkins established both deficient performance and
prejudice, entitling him to habeas relief. See Strickland v. Washington, 466 U.S.
668, 687 (1984).
A. Deficient Performance
The Alabama state courts concluded that Jenkins’ counsel, Stan Downey,
did not perform deficiently at the penalty phase. The majority finds that
conclusion reasonable primarily because Downey (1) was not obligated to
Case: 17-12524 Date Filed: 08/30/2019 Page: 57 of 73
investigate Jenkins’ abusive childhood and (2) reasonably pursued a residual doubt
strategy at the penalty phase. But further review of the record requires me to part
company with the majority’s reasoning and, ultimately, persuades me that the
Alabama courts’ conclusion was indeed unreasonable. See 28 U.S.C. § 2254(d)(1)
(providing that a writ of habeas corpus should not be granted to a state prisoner
unless the state court adjudication involved “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”).
Jenkins offers numerous examples of how his counsel performed deficiently
at the penalty phase of trial. First, counsel failed to thoroughly investigate Jenkins’
abusive childhood—an error that constitutes deficient performance. In Williams v.
Allen, we held that counsel’s failure to investigate mitigating evidence at the
penalty stage constituted ineffective assistance of counsel because counsel drew
upon only three sources of information—a psychologist’s report, a presentence
investigation report, and an interview with the appellant’s mother. 542 F.3d 1326,
1340 (11th Cir. 2008); see also Debruce v. Comm’r, Ala. Dep’t of Corr., 758 F.3d
1263, 1270, 1273–74 (11th Cir. 2014) (finding counsel’s performance deficient
where counsel interviewed the petitioner and his mother, but failed to contact
expert witnesses or other family members). In that case, we concluded that
57
Case: 17-12524 Date Filed: 08/30/2019 Page: 58 of 73
counsel’s lack of investigation resulted in “an incomplete and misleading
understanding of Williams’s life history.” Williams, 542 F.3d at 1340.
Jenkins’ counsel did even less than the attorneys in Williams and Debruce.
That is, Jenkins’ counsel conducted no investigation. Downey did not consider
Jenkins’ poor school records, mention Jenkins’ juvenile history, produce
documentary evidence that Jenkins suffered from severe depression, or pursue
records demonstrating Jenkins’ significant deficits in cognitive functions. We have
previously found that a counsel’s failure to investigate these rudimentary examples
of mitigating evidence constitutes ineffective assistance of counsel. See Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248 (2016) (reversing and remanding
district court’s dismissal of the ineffective assistance of counsel claim and noting
how counsel should have more thoroughly investigated Daniel’s history of
physical and sexual abuse, his poor school records, and evidence of a potential
intellectual disability).
Given the lack of preparation, it is not surprising that Downey failed to call
any witnesses to testify at the penalty stage about Jenkins’ childhood, thus failing
to give a complete depiction of Jenkins’ “excruciating life history.” Wiggins v.
Smith, 539 U.S. 510, 537 (2003) (finding deficient performance where counsel did
not adequately investigate petitioner’s life history for mitigating evidence); see
also Debruce, 758 F.3d at 1270, 1273–74; Johnson v. Sec’y, Dep’t of Corr., 643
58
Case: 17-12524 Date Filed: 08/30/2019 Page: 59 of 73
F.3d 907, 932 (11th Cir. 2011) (“No reasonable attorney, after being told by his
client that he had an abusive upbringing, would fail to interview members of his
family who were readily available and could corroborate or refute the allegations
of abuse.”).1 If Downey had effectively investigated—or investigated at all—he
would have been aware of several available and informed witnesses. Ultimately,
only one witness testified at the penalty phase: Lonnie Seal.2 Downey met with
Seal for only fifteen minutes before the penalty phase began. That fifteen minutes
represents the extent of Downey’s preparation for the penalty phase—a wholly
inadequate amount of time under Supreme Court precedent. See Williams v.
Taylor, 529 U.S. 362, 395 (2000) (finding mitigation investigation deficient where
“counsel did not begin to prepare for that phase of the proceeding until a week
before the trial”).
Despite ample evidence of deficient performance, the Alabama Court of
Criminal Appeals (CCA) concluded that Downey performed reasonably. The
CCA’s decision rested on three explanations: (1) because Downey did not testify,
courts must presume he acted reasonably; (2) based on the record, Downey played
1
The majority goes to great pains to maintain that Downey did not know about Jenkins’ abusive
childhood. This assertion is directly refuted by the record. Douglas Scofield, Jenkins’ lead
attorney, testified that Jenkins described his traumatic upbringing at meetings at which Downey
was present.
2
It is unclear whether Downey contacted Seal and requested that he testify during the penalty
phase of trial. Given that Downey urged Scofield to conduct Seal’s direct examination because
Scofield was better acquainted with Seal, it is likely that Scofield made the arrangements.
59
Case: 17-12524 Date Filed: 08/30/2019 Page: 60 of 73
an active role investigating and preparing for the penalty phase of trial; and (3)
Downey’s decision to pursue a residual doubt strategy was reasonable.3 Because
each of these findings constituted an unreasonable determination of the facts or an
unreasonable application of clearly established federal law, Jenkins is entitled to
habeas relief. See 28 U.S.C. § 2254(d)(1).
The CCA’s first rationale—presuming Downey acted reasonably because
Downey did not testify at the Rule 32 hearing—was based on both an unreasonable
determination of facts and an unreasonable application of clearly established law.
The CCA stated that “the record is virtually silent as to what actions were or were
not taken or what was or was not done by Mr. Downey at trial and why” and
therefore assumed that Downey’s actions “could have been reasonable and
strategic under the circumstances.” The majority likewise assumes Downey acted
reasonably. This conclusion is based, in large part, on Downey’s failure to testify
at the Rule 32 hearing. According to the majority, “[t]he problem for Jenkins is
that, like the state courts, this Court also does not know what Downey did or why.”
But the record clearly illustrates Downey’s failure to investigate and overall
lack of preparation. First, Downey’s fee declarations—which the majority
concedes were “detailed”—showed no investigation of mitigating circumstances,
and no preparation for the penalty phase. Importantly, Downey’s fee declarations
3
The majority opinion endorsed the CCA’s first and third explanations.
60
Case: 17-12524 Date Filed: 08/30/2019 Page: 61 of 73
were exceptionally detailed, recounting his work in five-minute increments. The
single reference to the “mitigating” phase of trial in the declarations concerned a
meeting with Scofield that occurred only a week before trial. Other than that
vague entry, no notation indicates that Downey did anything to prepare for the
penalty phase of trial during the nearly two years he represented Jenkins.
Second, and more persuasively, Douglas Scofield, Jenkins’ lead attorney,
explicitly testified that Downey told him that Downey had not investigated
potential mitigating evidence. Both the Alabama courts and the majority ignore
that fact and instead focus on Scofield’s testimony that, “[a]part from what he has
told me, I don’t know what he has done.” This statement, to which the majority
assigns great weight, is hardly illuminating. Of course Scofield knows only what
Downey told him. And what Downey told him was this: Downey did not
investigate potentially mitigating evidence before the penalty phase.
In the face of this direct evidence of deficient performance, the Alabama
courts and the majority pivot to Downey’s failure to testify at the Rule 32 hearing.
Without his testimony, the majority reasons, we must assume that Downey’s
decision not to investigate was strategic and therefore his representation
reasonable. I disagree, and I have deep reservations about the practical effects of
the majority’s understanding of the law. The majority suggests (if not holds) that
the absence of testimony from an allegedly deficient attorney per se means that the
61
Case: 17-12524 Date Filed: 08/30/2019 Page: 62 of 73
attorney’s actions were reasonable. It is true that “counsel is strongly presumed to
have rendered adequate assistance,” Strickland, 466 U.S. at 690. But a petitioner
may overcome that burden with evidence of inadequate assistance. And that
evidence may take various forms. To satisfy the burden, it is not necessary for the
allegedly deficient counsel to testify and admit wrongdoing. Nor is it necessary for
the record to reflect counsel’s “thoughts and intentions as he prepared for the
penalty phase,” as the majority seems to require. When evaluating whether a
counsel’s performance was deficient, we ask whether his performance “fell below
an objective standard of reasonableness.” Strickland, 466 U.S. 687–88. We do not
contemplate what counsel thought or intended. We consider whether his
performance was objectively unreasonable. See id. Because the Alabama courts
did not apply the proper standard, their conclusion was an unreasonable application
of clearly established law. See id.
The CCA’s second reason for denying Jenkins relief was also based on an
unreasonable application of clearly established federal law. The CCA concluded
that Downey had adequately investigated and prepared for the penalty phase of
trial, emphasizing that Downey met with Jenkins on several occasions and spoke
with Jenkins’ grandmother. Based on these findings, the CCA determined that
Downey provided adequate assistance of counsel during the penalty phase. This is
an unreasonable application of clearly established law that “[a]n attorney has a
62
Case: 17-12524 Date Filed: 08/30/2019 Page: 63 of 73
duty to conduct a reasonable investigation, including an investigation of the
defendant’s background, for possible mitigating evidence.” Porter v. Singletary,
14 F.3d 554, 557 (11th Cir. 1994).
As previously discussed, it is established in the record that Downey knew of
Jenkins’ horrible upbringing yet still failed to investigate potentially mitigating
evidence. “A reasonable investigation . . . should have included, at a minimum,
interviewing other family members who could corroborate the evidence of abuse
and speak to the resulting impact on [Jenkins].” Williams, 542 F.3d at 1340. But
Downey did not conduct a single interview—of a family member or otherwise—in
preparation of the penalty phase.4 Because Downey did not conduct an
investigation, let alone a reasonable investigation, the CCA’s conclusion that
Downey adequately investigated potentially mitigating evidence was an
unreasonable application of clearly established law.
The CCA’s third rationale for its decision—that Jenkins’ counsel reasonably
and strategically decided to focus on residual doubt—was both an unreasonable
application of clearly established law and an unreasonable determination of the
facts. In Williams v. Taylor, the Supreme Court held that otherwise reasonable
trial strategies cannot be justified unless counsel first conducted a constitutionally
4
Downey’s fee declaration reflects one telephone call he had with Jenkins’ grandmother, Doris
Wagoner. But that call occurred 18 months before trial and, according to Wagoner, concerned a
request for money.
63
Case: 17-12524 Date Filed: 08/30/2019 Page: 64 of 73
adequate investigation. 529 U.S. at 395–96. And here, Downey conducted no
such investigation. It cannot be said, therefore, that Downey’s decision—if one
can even call it that—to pursue a residual doubt strategy was strategically
reasonable. See id. The CCA’s conclusion to the contrary was an unreasonable
application of clearly established law.
The conclusion was likewise an unreasonable determination of the facts. On
direct appeal, the Alabama CCA noted that “[t]he evidence overwhelmingly
pointed to the guilt of the appellant.” Jenkins v. State, 627 So. 2d 1054 (Ala. Crim.
App. Feb. 27, 1992). Then, on appeal from Jenkins’ Rule 32 petition, the CCA
again acknowledged how “[t]he evidence establishing Jenkins’s guilt was
overwhelming.” Jenkins v. State, 972 So. 2d 111, 157 (Ala. Crim. App. Feb. 27,
2004); see also id. at 156 (“The amount of evidence incriminating Jenkins . . . was
overwhelming.”). Despite the “overwhelming” evidence of Jenkins’ guilt, the
CCA concluded that Jenkins’ counsel acted reasonably in presenting a residual
doubt defense during the penalty phase of trial. But no reasonable attorney would
employ a residual doubt strategy in the face of such overwhelming evidence. See
Johnson, 643 F.3d at 932–33. The Alabama courts’ contrary conclusion, therefore,
was an unreasonable determination of the facts.
64
Case: 17-12524 Date Filed: 08/30/2019 Page: 65 of 73
B. Prejudice
Jenkins’ Rule 32 petition also pleaded sufficient facts to show that his
counsel’s deficient performance prejudiced his defense, satisfying the second
Strickland prong. To establish prejudice, a petitioner must show a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Here, the
jury voted in favor of the death penalty by the slimmest margin permitted under
Alabama law: ten votes in favor and two votes against. Jenkins need only
establish, then, “a reasonable probability that at least one juror would have struck
a different balance.” Wiggins, 539 U.S. at 537 (emphasis added). In measuring
that probability, we “evaluate the totality of the available mitigation evidence—
both that adduced at trial, and the evidence adduced in the habeas proceeding in
reweighing it against the evidence in aggravation.” Williams, 529 U.S. at 397.
The testimony elicited at the Rule 32 hearing was horrendous. Four family
members offered detailed, consistent testimony about Jenkins’ traumatic
childhood. The majority describes that testimony, highlighting some of the most
appalling facts elicited at the Rule 32 hearing. For example, Jenkins’ stepfather
would beat Jenkins on a semi-daily basis, would lock him in a room for hours
without food, and even made Jenkins eat his own feces. In addition to the
mitigating facts detailed by the majority, the following came to light during the
65
Case: 17-12524 Date Filed: 08/30/2019 Page: 66 of 73
Rule 32 hearing. Jenkins’ mother had an affair while her husband, Jenkins’
stepfather, was in prison. When Jenkins’ stepfather was released, he took out his
frustrations about the affair on Jenkins. Because Jenkins’ biological father was
Jenkins’ stepfather referred to Jenkins in demeaning names like “Mexican trash,”
and “Puerto Rican puke.” The stepfather also called him “piece of shit” and
“bastard.”
The Rule 32 testimony also detailed the alcohol substance abuse, drug
addiction, and incessant domestic violence that surrounded Jenkins’ childhood.
And, most shockingly, the testimony described how Jenkins’ grandfather sexually
abused Jenkins when Jenkins was just four years old. As a result of that sexual
abuse, Jenkins, suffered bladder and bowel movement issues. Jenkins’
incontinence became a trigger for his stepfather: when Jenkins had an accident, his
stepfather would beat him or subject him to severe degradation. For example,
Jenkins’ stepfather would hang Jenkins’ soiled sheets in the front yard for all the
neighbors to see, make Jenkins wear his soiled clothes on his head, and, most
disturbingly, make Jenkins eat his own feces. The only way to escape the abuse
was by running away. So, by age twelve, Jenkins lived on the streets.5
5
The CCA found parts of the family members’ testimony not credible, though it did not
explicitly discredit testimony describing some of the worst abuse. Given the grotesque nature of
the family members’ testimony, and the fact that their testimony was consistent, there is
reasonable probability that at least one more juror would have been compelled to vote against a
death sentence.
66
Case: 17-12524 Date Filed: 08/30/2019 Page: 67 of 73
Jenkins also introduced medical, school, and juvenile court records from his
childhood, which shed further light on his difficult childhood and intellectual
deficiencies. Juvenile records show Jenkins as “an emotionally disturbed child”
with “psychological problems” and expressed “grave concerns for the emotional
will being of this adolescent”. Moreover, two psychologists testified about
Jenkins’ history of psychological trauma stemming from his childhood abuse—
weighty evidence that is not even considered in the majority’s discussion. Finally,
two prison guards testified that Jenkins was the ideal prisoner during pretrial
detention. One of the guards even described Jenkins as the best inmate he had
every supervised.
Given this compelling mitigating evidence, it is not difficult to conclude that
Jenkins established “a reasonable probability that at least one juror would have
struck a different balance” between life and death. Wiggins, 539 U.S. at 537; see
also Daniel, 822 F.3d at 1276 (listing several factors that support a prejudice
finding, including (1) evidence of impaired intellectual functioning; (2) evidence of
childhood sexual abuse; and (3) the fact that the jury voted only 10–2 in
recommending a death sentence).
I. Evidentiary Hearing
Jenkins also argues that he is entitled to habeas relief under Atkins v.
Virginia, 563 U.S. 304 (2002). He contends that he satisfies the three requirements
67
Case: 17-12524 Date Filed: 08/30/2019 Page: 68 of 73
necessary to establish intellectual disability—(1) subaverage intellectual
functioning; (2) deficits in adaptive behavior; and (3) onset before the age of 18,
see Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002)—thus, exempting him from
implementation of the death penalty. Alternatively, Jenkins argues that we should
remand for an evidentiary hearing on the Atkins issue.
The majority dismisses each argument. First, it concludes that the CCA did
not act unreasonably in concluding that Jenkins failed to satisfy any of the Perkins
prongs. Second, it determines that Jenkins is not entitled to an evidentiary hearing
because he “did not diligently attempt to develop the factual basis for this claim in
the state court.” I disagree.
First, it is not possible to undergo a substantive Atkins analysis based on the
record before us. For one, the CCA’s evaluation of Jenkins’ Atkins claim was a
mere three sentences. And, more significantly, Jenkins never had an opportunity to
present evidence on his Atkins claim. To deny Jenkins’ claim, therefore, the
majority relies on evidence from unrelated parts of the record. Such an approach is
improper because, “[p]rior to Atkins, [the petitioner] could not have been expected
to necessarily present evidence sufficient to support an Atkins claim because such
evidence constituted a double edged sword.” Burgess v. Comm’r, Ala. Dep’t of
Corr., 723 F.3d 1308, 1320 (11th Cir. 2013) (internal citation omitted). The
evidence was a double-edged sword, we explained, because prior to Atkins,
68
Case: 17-12524 Date Filed: 08/30/2019 Page: 69 of 73
evidence of intellectual disability could suggest that a defendant would be
dangerous in the future; therefore, “a defendant could reasonably decide not to
highlight his mental retardation.” Id. at 1318. For that reason, courts should not
rely on pre-Atkins evidence—evidence that was presented in a wholly distinct
context—to support a finding that a petitioner is not intellectually disabled. So,
here, instead of attempting to make a medical diagnosis based on an insufficient
record, we should remand for an evidentiary hearing. The majority refuses to do
so, reasoning that “Jenkins did not diligently attempt to present his Atkins claim in
the state courts.” I disagree.
“[I]f the petitioner was diligent in developing the record in the state habeas
proceedings, ‘a federal court may grant an evidentiary hearing without further
regard for the provisions of § 2254(3)(2).” Burgess, 723 F.3d at 1320 (citation
omitted). “‘Diligence [for purposes of § 2254(d)] depends on whether the prisoner
made a reasonable attempt, in light of the information available at the time, to
investigate and pursue claims in state court,’ and ‘will require in the usual case that
prisoner, at a minimum, seek an evidentiary hearing in state court.’” Id. (quoting
Williams, 529 U.S. at 435 (emphasis added)).
The majority concludes that Jenkins failed to diligently pursue his Atkins
claim in state court. But again, based on binding precedent and the record, I must
part company with the majority. In conducting its analysis, the majority does not
69
Case: 17-12524 Date Filed: 08/30/2019 Page: 70 of 73
adequately consider whether Jenkins “made a reasonable attempt, in light of the
circumstances available at the time, to investigate and pursue claims in state
court.” Id. (emphasis added) (quoting Williams, 529 U.S. at 435). Specifically, the
majority did not consider the unusual procedural posture of Jenkins’ claim.
The Supreme Court issued Atkins v. Virginia while Jenkins’ petition for
post-conviction collateral relief was pending before the CCA. The CCA, therefore,
requested supplemental briefing on the effect, if any, Atkins had on Jenkins’
petition. At that point, neither the Alabama Supreme Court nor the Alabama
legislature had interpreted the groundbreaking case, making Jenkins’ counsel’s
next step unclear. Jenkins’ counsel nonetheless made a reasonable attempt to
pursue Jenkins’ Atkins claim—he requested that the CCA “vacate his death
sentence and remand the case back to the lower court for further proceedings.”
The request appears even more reasonable when considered alongside procedurally
analogous cases decided around the same time.
At the time Jenkins’ counsel was preparing the supplemental briefing, there
had been three other post-conviction petitions for relief that shared Jenkins’
unusual procedural posture. See Clemons v. State, 55 So. 3d 314 (Ala. Crim. App.
Aug. 29, 2003); Wood v. State, 891 So. 2d 398 (Ala. Crim. App. Apr. 25, 2003);
Tarver v. State, 940 So. 2d 312 (Ala. Crim. App. Feb. 27, 2004). These three cases
are similar to Jenkins’ petition in that (1) the petitioners were sentenced to death,
70
Case: 17-12524 Date Filed: 08/30/2019 Page: 71 of 73
(2) the petitioners filed Rule 32 petitions, (3) their Rule 32 petitions were
dismissed at the trial court level, (4) while their appeals before the CCA were
pending, Atkins was decided, and (5) given the Atkins decision, each petitioner
submitted supplemental briefing. In their supplemental briefs, Clemons, Wood,
and Tarver each argued that he was intellectually disabled under Atkins and thus it
would be unconstitutional to execute him. None of the petitioners asked for an
evidentiary hearing on their Atkins claim or requested a remand for further
proceedings. Despite the lack of request for a hearing, the CCA remanded for an
evidentiary hearing in each case.
With these cases in mind, it would have been reasonable for Jenkins to think
that broadly stating his Atkins claim would constitute “diligent” pursuit of his
claim. Nonetheless, Jenkins did more than these other petitioners: he specifically
requested that the CCA “vacate his death sentence and remand the case back to the
lower court for further proceedings.” Given “the information available at the
time,” Jenkins’ made a “reasonable attempt” to pursue his claims.
I also cannot come to terms with the majority’s ultimate conclusion. The
majority determines that Jenkins did not act diligently in pursuing his Atkins claim
because “[t]he record clearly shows that Jenkins did not [seek an evidentiary
hearing].” But Jenkins did ask the CCA to “remand his case for further
proceedings.” And, in Alabama, post-conviction relief petitioners with factually
71
Case: 17-12524 Date Filed: 08/30/2019 Page: 72 of 73
sufficient claims are entitled to an evidentiary hearing. Ala. R. Crim. P. 32.9. So,
if the CCA had granted Jenkins’ request to remand “for further proceedings,”
Jenkins would have received an evidentiary hearing. Jenkins’ request that the
CCA “remand for further proceedings,” then, was effectively equivalent to a
request for an evidentiary hearing. The majority’s superficial conclusion to the
contrary misses the point.
II. Conclusion
Jenkins’ Rule 32 evidentiary hearing spanned three days. Four family
members testified about his horrific upbringing. Two psychiatrists testified about
how that upbringing affected Jenkins as an adult. Two prison guards testified
about Jenkins’ exemplary behavior while in pretrial detention. And one friend
testified about Jenkins’ character. Evidence introduced also documented Jenkins’
academic failings and his juvenile record. In short, Jenkins presented an
abundance of compelling mitigating evidence. But the jury never heard any of that
evidence. Downey failed to introduce it at the penalty phase. In fact, Downey
failed to investigate any mitigating evidence whatsoever. Downey’s failures
cannot be attributed to strategic decisions. Nor can they be called reasonable. His
performance can only be described as deficient. And that deficient performance
was surely prejudicial—there is more than a reasonable probability that the
horrifying and detailed Rule 32 testimony would have persuaded one juror to vote
72
Case: 17-12524 Date Filed: 08/30/2019 Page: 73 of 73
against sentencing Jenkins to death. Jenkins is therefore entitled to habeas relief
on his ineffective assistance of counsel claim.
Jenkins is also entitled to a hearing on his Atkins claim. Though Jenkins
presented ample mitigating evidence at the Rule 32 hearing, he never had an
opportunity to present evidence concerning (1) his intellectual functioning, (2) his
adaptive deficits, or (3) whether his potential intellectual disability manifested
before Jenkins reached 18—the three requirements necessary to establish
intellectual disability and thus exempt an individual from a death sentence. The
CCA nonetheless decided to evaluate Jenkins’ Atkins claim, apparently believing
that the record, which included no direct evidence concerning whether Jenkins was
intellectually disabled, was sufficient to resolve the complex medical issue. In just
three sentences, the CCA arrived at a diagnosis: not intellectually disabled.
Despite the insufficient factual record, the majority declines to remand with
instructions to conduct an evidentiary hearing—what I view as the proper
recourse—because Jenkins did not use the phrase “evidentiary hearing” when
requesting further proceedings on his Atkins claim in the Alabama courts. Such a
rigid understanding of the standard should not bar a death row petitioner from
bringing a constitutional, and potentially lifesaving, claim. I therefore dissent.
73