Jenkins v. Zatecky

ALAN JENKINS, Petitioner, v. DUSHAN ZATECKY, Superintendent, Respondent.

Case No. 1:15-cv-2040-WTL-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

January 10, 2017

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability

For the reasons explained in this Entry, the petition of Alan Jenkins for a writ of habeas corpus must be denied and the action will be dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.

I. The Petition for Writ of Habeas Corpus

A. Background

Jenkins was convicted in Johnson County of two counts of child molesting, each as a Class A felony, and was found to be a habitual offender. The Indiana Court of Appeals provided the following recitation of facts in Jenkins' appeal from the partial denial of post-conviction relief:

In the winter of 2002, Jenkins's sister, S.P, and her twelve-year-old daughter, G.P., moved in with Jenkins. During the following two to three months, Jenkins's relationship with G.P. changed from an "uncle/niece relationship," to being friends, and then to a "boyfriend/girlfriend relationship." Trial Tr. at 675-76 [footnote omitted]. Jenkins and G.P., who was in sixth grade at the time, regularly engaged in sexual intercourse and oral sex, activities that were often accompanied by alcohol and drug use. G.P. would steal liquor and cigarettes from drugstores, and Jenkins would sometimes drive her to the stores. The two spent a great deal of time together, often because G.P. was skipping school. At some point, the two "started doing 'crack' together." Id. at 587.

From December 2002 through August 2003, Jenkins, S.P., and G.P. lived in various apartments, and on August 25, 2003, all three moved into a home located on East Main Street in Greenwood, Johnson County, Indiana. G.P. remained in that home until December 11, 2003, when she was taken into custody by Juvenile Probation for having violated her probation for truancy. Immediately after being taken into custody, G.P. failed a mandatory drug screen, by testing positive for cocaine, marijuana, and alcohol. This, among other factors, resulted in G.P. being placed into Fresh Start, a placement home for juveniles who have been removed from their home and placed into the care of a state agency.

In February 2004, Court Appointed Special Advocate ("CASA") Roger York investigated G.P.'s case and filed a report with the trial court regarding his findings. CASA York reported that he had met with S.P., Jenkins, and their mother, Beverly Jenkins ("Beverly") at the East Main Street home. During his visit, CASA York told G.P.'s family that there could be no drugs or alcohol in the home. When S.P. interrupted to ask when G.P. would be allowed to come home, the CASA explained that G.P. would have to complete her alcohol abuse program. PCR App. at 261. S.P. said that she understood; however, Jenkins "kept objecting and at one point accused the Court of kidnapping [G.P]." Id. "Beverly said that she had seen this coming for a long time and she indicated that there was something wrong with [Jenkins]." Id. Meanwhile, during fresh Start counseling sessions, G.P. provided counselors with the names of men with whom she claimed to be sexually active.

As part of the his [sic] report, CASA York reported that he called Johnson County Probation Officer Shannon Chambers ("Chambers") and Office of Family Services Case Manager Deborah Anderson ("Anderson")[footnote omitted] and "expressed concerns about [Jenkins]." Id. CASA York did not expressly state the nature of his concerns. Both Chambers and Anderson indicated that they also had concerns, and Fresh Start was alerted to the concerns. Within a few weeks, G.P. admitted to Fresh Start employees that it was her uncle, Jenkins, with whom she was engaging in oral sex and sexual intercourse and that he, in part, "controlled her by hooking her on cocaine." Id. at 261.

Detective Patti Cummings, of the Greenwood Police Department, was the lead investigator and first became involved in the investigation in early February 2004. On February 17, 2004, the State charged Jenkins with three counts of child molesting, each as a Class A felony; in March 2004, the State added the charge of contributing to the delinquency of a minor as a Class A misdemeanor and alleged that Jenkins was a habitual offender. Jenkins initially requested that the DNA found at the scene, which implicated him, be retested. However, upon learning that the retesting would not be completed until after the deadline for his speedy trial, Jenkins chose to abandon the retesting and pursue his right to a speedy trial. Attorney James Dunn ("Dunn") was initially appointed as Jenkins's public defender, but was relieved of his appointment when other commitments interfered with Jenkins's request for a speedy trial. John P. Wilson ("Wilson") accepted the appointment as Jenkins's new public defender and entered an appearance at a hearing on April 5, 2004. The jury trial commenced about twenty-eight days later. Wilson served as Jenkins's counsel during the jury trial and through sentencing.

Jenkins's trial commenced in Judge Kevin Barton's courtroom on May 3, 2004 and ran through May 11, 2004. The jury found Jenkins guilty of two counts of Class A felony child molesting—one for engaging in sexual intercourse with G.P. and one for receiving oral sex from G.P.—and determined he was a habitual offender. The jury, however, acquitted Jenkins of one count of Class A felony child molesting, for providing oral sex to G.P., and of Class A misdemeanor contributing to the delinquency of a minor. The trial court entered judgment of conviction on the jury verdicts and sentenced Jenkins to two enhanced thirty-five-year terms for the child molesting and another thirty-year term for being a habitual offender, all to be served consecutively, for an aggregate sentence of 100 years.

Attorney Charles Gantz ("Gantz") served as Jenkins's appellate counsel, raising only a sentencing issue on direct appeal. A panel of this court affirmed Jenkins's sentence in an unpublished memorandum decision; however the case was remanded for the trial court to link the habitual offender status to one of the felony convictions. Jenkins v. State, No. 41A01-0502-FA-1, slip op. at 1-6 (Ind.Ct.App. June 28, 2005). An amended sentencing order was entered on August 24, 2005.

Acting pro se, Jenkins filed a Verified Petition for Post-Conviction Relief on February 8, 2006, alleging that he was denied the effective assistance of both trial and appellate counsel. On March 17, 2006, the appointed public defender filed a notice of "present inability to investigate". PCR App. at 97. Jenkins asked that [sic] the PCR court to "stay all proceedings in this case until such time as counsel is ready to proceed." Id. By order dated April 6, 2006, the PCR court granted Jenkins's request, stating the "matter be set for hearing when Petitioner's counsel notifies the court of her ability to proceed." Id. Jenkins's counsel never notified the PCR court; instead, she obtained the court's permission to withdraw from the case on July 1, 2008. This triggered the PCR court to set the post-conviction petition for a hearing on September 18, 2008.

On three occasions in 2009, the PCR court granted Jenkins a continuance and reset the hearing. When Jenkins requested a fourth continuance, the PCR court vacated the scheduled hearing, noting that the hearing would be reset after Jenkins had completed legal research and discovery. PCR App. at 98. No entries were made on the CCS from December 7, 2009 until March 3, 2011, at which time Jenkins informed the PCR court that he was still not ready to proceed with a hearing.

On February 2, 2012, Jenkins requested public funds to obtain independent DNA testing and to hire an expert witness; the PCR court denied the request and also denied Jenkins's motion to certify that order for interlocutory appeal. On June 22, 2012, Jenkins filed an unverified motion to amend his PCR petition in part. An evidentiary hearing began on November 28, 2012, with Judge Barton again presiding. Trial counsel Wilson, G.P., and two other witnesses testified as witnesses for Jenkins; however, when time ran short, the PCR court ordered the hearing be reconvened on February 21, 2013. Later, the hearing was reset to May 29, 2013, due to a congested court calendar. On that day, Jenkins called seven witnesses, including his mother, his sister-in-law, Probation Officer Chambers, appellate attorney Gantz, Wilson, and G.P.; however, upon discovering that Jenkins's witness, Case Manager Anderson, had not been subpoenaed, the PCR court retained a private investigator to locate and serve Anderson. Once Anderson was located,the hearing was rescheduled for September 17, 2013, and was concluded that same day.

Following the three-day evidentiary hearing, the PCR court denied Jenkins's PCR petition, finding that both trial counsel and appellate counsel provided effective assistance of counsel and that the affirmative defense of laches barred relief to Jenkins as to the underlying convictions.

Jenkins v. State, 41 N.E.3d 306, *1-5 (Ind.Ct.App. October 14, 2015). The Indiana Court of Appeals rejected Jenkins' challenges in that appeal—challenges to the representation he received both at trial and in his direct appeal. These challenges are renewed in the present action for habeas corpus relief.

B. Jenkins' Claims

In the appeal just referenced, Jenkins claims that his trial counsel was ineffective for failing to:

(a) Depose or subpoena CASA Roger York;

(b) Question witnesses about other people G.P. engaged in sexual conduct with;

(c) Question G.P. about how she was positioned on the orange recliner during vaginal intercourse;

(d) Investigate whether G.P. had been coached by the State;

(e) Personally investigate the crime scene;

(f) Have DNA retested and presenting an expert;

(g) Present the testimony of Jenkins's mother and sister-i

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