ROBERT L. JENKINS, Petitioner - Appellant
PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; RON KING, Superintendent, Central Mississippi Correctional Facility, Respondents - Appellees
from the United States District Court for the Southern
District of Mississippi
REAVLEY, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
L. Jenkins appeals the district court's denial of his 28
U.S.C. § 2254 petition for writ of habeas corpus. The
State of Mississippi indicted Jenkins for possessing a
substance weighing more than 0.1 gram but less than 2 grams
and containing a detectable amount of cocaine. The laboratory
analyst who determined the weight and identity of the
substance (Alison Smith) was unavailable to testify at trial,
so her manager and technical reviewer (Timothy Gross)
testified about the test results. Jenkins objected that he
had a Sixth Amendment right to confront Smith. The trial
court overruled his objection, and Jenkins was convicted by a
jury. Pursuant to Mississippi's habitual offender
statute, Jenkins was sentenced to life imprisonment without
the possibility of parole. After exhausting his state court
remedies, Jenkins filed a § 2254 petition, which the
district court denied. We affirm.
Arrest and Evidence Seizure
January 27, 2007, close to midnight, a state police officer
named Michael Brennan observed Jenkins staggering as he
walked along a roadway in Biloxi, Mississippi. Officer
Brennan stopped Jenkins to check his sobriety and detected a
slur in his speech, the odor of alcoholic beverages on his
breath, watery and bloodshot eyes, and that his balance was
unsteady. When Officer Brennan attempted to take Jenkins into
custody for public intoxication, he noticed a white tissue in
Jenkins's mouth. Officer Brennan ordered Jenkins to
remove the tissue and Jenkins complied, placing it on the
hood of the patrol car. At that point, a white, rock-like
substance rolled out of the tissue. Jenkins grabbed the rock,
threw it in his mouth, and swallowed it. When Officer Brennan
checked Jenkins's mouth, it was no longer there. But
Officer Brennan discovered two more rocks in the tissue.
Brennan placed those rocks into an evidence bag. He
heat-sealed the bag and wrote the date, his initials, and the
case number on it. Later that night, he placed the bag into a
vault that is accessible only to narcotics investigators.
Crime Lab Examination
three months later, the Mississippi Crime Laboratory (the
"Crime Lab") examined the rocks. The Crime Lab
Report (the "Report") listed the specific tests
performed as: "Chemical Test" and "Gas
Chromatography/Mass Spectrometry." The Report concluded
that the bag contained "Cocaine, Amount: 0.1 Gram."
It was certified and signed by both Alison Smith as
"Case Analyst" and Timothy Gross as "Technical
is also known as a "technician." Her job is to
visually examine evidence, weigh it, obtain a sample of it,
and then subject that sample to chemical tests.
is Smith's manager. He oversees the general operations of
the Crime Lab and serves as technical and administrative
reviewer on some cases. As a technical reviewer, it is
Gross's job to review the data in a case file to ensure
that it supports the analyst's conclusion on the report.
The administrative review assesses the accuracy of basic
information like dates and initials and whether proper
procedures were followed. Gross was the technical and
administrative reviewer in Jenkins's case. In that
capacity, he did not observe or participate in Smith's
testing of the substance, but he did review the data that
Smith placed on her worksheet and the mass spectrometry data
in the case file in order to ensure that they supported her
conclusions in the Report.
mentioned above, Smith performed two tests to determine the
substance's identity: a "Chemical Test" and a
"Gas Chromatography/Mass Spectrometry." The
chemical test was a "cobalt thiocyanate test,"
which involves placing a small amount of the sample in a test
tube with cobalt thiocyanate solution to observe color
change. The "Gas Chromatography/Mass Spectrometry"
is used to separate different components in a sample.
the Report was issued, a Mississippi grand jury indicted
Jenkins for possession of a controlled substance and the case
proceeded to trial.
time of trial, Smith was unavailable due to extended medical
leave. Accordingly, the State called Gross to testify about
the results of the Crime Lab examination. Jenkins objected.
Outside the presence of the jury, the trial court heard
Gross's testimony and then ruled: "[I]n light of
[the] fact that Mr. Gross participated in the analysis of the
subject testing in the capacity as technical reviewer[, his
testimony] does not violate the defendant's 6th Amendment
right, and as ...