     Case: 17-60043   Document: 00514760349    Page: 1   Date Filed: 12/13/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 17-60043               United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                                                          December 13, 2018
ROBERT L. JENKINS,
                                                             Lyle W. Cayce
             Petitioner - Appellant                               Clerk


v.

PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; RON KING, Superintendent, Central Mississippi
Correctional Facility,

             Respondents - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:

      Robert 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,
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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.
                                   BACKGROUND 1
I.     Arrest and Evidence Seizure
       On 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.
       Officer 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.
II.    Crime Lab Examination
       Approximately three months later, the Mississippi Crime Laboratory
(the “Crime Lab”) examined the rocks. The Crime Lab Report (the “Report”)


       1The following narrative traces testimony offered by the State at trial because Jenkins
presented no affirmative case. Except where indicated, none of these facts is disputed.
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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 Reviewer.”
         Smith 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.
         Gross 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. 2
         As 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.




        Smith’s worksheet is not in the record, nor is any of the raw data that the case file
         2

contained.
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        After the Report was issued, a Mississippi grand jury indicted Jenkins
for possession of a controlled substance and the case proceeded to trial.
III.    Jury Trial
        At the 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 such the objection is overruled and the witness will
be able to testify in an expert capacity as to the results of the crime lab.”
        During trial, the court admitted Gross to testify as an expert in
“narcotics analysis.” He began his testimony by describing his duties at the
Crime Lab. Then he presented chain-of-custody evidence, noting Smith’s
initials on the evidence bag. Next, Gross explained the examinations that were
performed: the cobalt thiocyanate test and the gas chromatography/mass
spectrometry. He did not explain how the weight of the substance was
determined. When asked whether there was “any data generated from Ms.
Smith’s analysis,” Gross answered, “Yes.” The State then asked Gross to
identify “State’s Exhibit Number 5” (the Report) and Gross did so, describing
it as “a report that was issued [in this case]” that “states the results of the
analysis.” The following exchange then occurred between the prosecutor and
Gross:

              Q. And in this case the results of analysis are what, Mr.
              Gross?
              A. The results of the analysis were th[at] evidence
              submission number one contained cocaine in the amount of
              0.1 gram.
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              Q. So the total weight is 0.1 gram; is that correct?
              A. Yes.

       The prosecutor concluded direct examination by asking whether, in
Gross’s review, there was “any indication that anything was wrong,” to which
Gross responded, “No.”
       Jenkins’s cross-examination focused only on the possibility that “the
amount of cocaine in th[e] substance could [have been] less than .1 gram[],”
even if the weight of the entire mixture had been 0.1 gram. 3 Jenkins’s trial
counsel never attempted to cross-examine Gross about how the substance was
weighed.
       The jury found Jenkins guilty. At sentencing, the trial court adjudicated
him a habitual offender pursuant to Miss. Code Ann. § 99-19-83 and sentenced
him to life imprisonment without the possibility of parole. Jenkins appealed,
arguing that the trial court violated the Confrontation Clause by allowing
Gross to testify in place of Smith.
       The Mississippi Court of Appeals affirmed, Jenkins v. State, 102 So. 3d
273, 276 (Miss. Ct. App. 2011), as did a divided Mississippi Supreme Court,
Jenkins v. State, 102 So. 3d 1063, 1064 (Miss. 2012), as modified on denial of
reh’g (Dec. 20, 2012). Having exhausted his state court remedies, Jenkins filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Southern District of Mississippi. On habeas,
Jenkins urged that the Mississippi Supreme Court’s decision in his case was



       3 That inquiry was misguided. The statute under which Jenkins was convicted
provides: “The weight set forth refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance.” Miss. Code. Ann. § 41–29–
139(c). Therefore, as long as the “mixture or substance” weighed at least 0.1 gram, and
cocaine was detectable therein, the weight of actual cocaine within the 0.1 gram substance is
irrelevant.
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contrary to, or involved an unreasonable application of, Bullcoming v. New
Mexico, 564 U.S. 647 (2011).
      While Jenkins’s petition was pending in the district court, the Fifth
Circuit decided Grim v. Fisher, 816 F.3d 296 (5th Cir. 2016). Grim applied
Bullcoming to a case in which a crime laboratory supervisor, rather than an
analyst, testified at trial, and held that such testimony did not violate clearly
established law. Id. at 301, 310–11. Following supplemental briefing, the
district court concluded that Grim barred Jenkins from habeas relief. Jenkins
appealed to this court. We affirm.
                           STANDARD OF REVIEW
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.” Lewis v. Thaler, 701 F.3d
783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004)).
      Under the Antiterrorism and Effective Death Penalty Act of 1996, “a
federal court may grant a state prisoner’s application for a writ of habeas
corpus if the state-court adjudication pursuant to which the prisoner is held
‘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.’” Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting
28 U.S.C. § 2254(d)(1)).
       “[A] state court decision is contrary to . . . clearly established [federal
law] if the state court applies a rule that contradicts the governing law set forth
in [Supreme Court] cases or if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [its] precedent.” Lockyer v.

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Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). “It is an
unreasonable application of Supreme Court precedent ‘if the state court
identifies the correct governing legal rule from [the] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case.’”
Salts v. Epps, 676 F.3d 468, 473–74 (5th Cir. 2012) (alteration in original)
(quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)).
      To obtain habeas relief under § 2254, “a state prisoner must show that
the state court’s ruling on the claim . . . was so lacking in justification that
there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415,
419–20 (2014) (quotation omitted). “If this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
                                  ANALYSIS
      Jenkins argues that his case is materially indistinguishable from
Bullcoming v. New Mexico, and that the Mississippi Supreme Court’s decision
rejecting Jenkins’s Sixth Amendment claim is contrary to, or an unreasonable
application of, that clearly established federal law. He acknowledges that Grim
v. Fisher addressed a similar issue but argues either that his case is
distinguishable from Grim or that Grim was wrongly decided.
      Bullcoming involved the crime of “driving a vehicle while ‘under the
influence of intoxicating liquor’ (“DWI”).” 564 U.S. at 652 (quoting N.M. Stat.
Ann. § 66–8–102 (2004)). When Bullcoming was arrested, he “refused to take
a breath test, [so] the police obtained a warrant authorizing a blood alcohol
analysis.” Id. Pursuant to the warrant, his blood was drawn and the sample
was sent to a crime laboratory for gas chromatography analysis. Id. at 652,
654. The lab produced a report stating that Bullcoming’s blood alcohol


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concentration (“BAC”) was 0.21, which was sufficiently high to prosecute him
for an aggravated DWI. Id. at 655.
      Bullcoming’s case proceeded to a jury trial. Id. On the first day of trial,
the State announced that it would not call Curtis Caylor, the forensic analyst
who had tested the blood sample, because he had been put on leave for an
unexplained reason. Id. at 653, 655. Instead, the State would introduce the lab
report through Gerasimos Razatos, a “scientist who had neither observed nor
reviewed Caylor’s analysis,” but who “qualified as an expert witness with
respect to the gas chromatograph machine” and “was available for cross-
examination regarding the operation of the . . . machine, the results of
[Bullcoming’s] BAC test, and the [lab’s] established laboratory procedures.” Id.
at 655–57. Defense counsel objected under the Confrontation Clause. Id. at
655–56. The trial court overruled the objection, the jury convicted Bullcoming,
and the New Mexico Supreme Court affirmed. Id. at 656–57. Bullcoming filed
a direct appeal to the United States Supreme Court, which reversed his
conviction.
      The scope of the Bullcoming holding is a question that has roiled federal
courts. See, e.g., Grim, 816 F.3d at 309 (noting “[w]idespread disagreement
among courts regarding Bullcoming”). In the introduction to Bullcoming, the
Court described the “question presented” as “whether the Confrontation
Clause permits the prosecution to introduce a forensic laboratory report
containing a testimonial certification—made for the purpose of proving a
particular fact—through the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the certification.”
564 U.S. at 652 (emphasis added). The Court answered that question in the
negative and explained, “The accused’s right is to be confronted with the
analyst who made the certification, unless that analyst is unavailable at trial,

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and the accused had an opportunity, pretrial, to cross-examine that particular
scientist.” Id. As Justice Sotomayor noted in her concurrence, Bullcoming was
“not a case in which the person testifying [was] a supervisor, reviewer, or
someone else with a personal, albeit limited, connection to the scientific test at
issue.” Id. at 672. 4 Razatos had “no involvement whatsoever in the relevant
test and report.” Id. at 673. As described above, that is not the context here,
nor was it the context in Grim. 5
       Grim presented a set of facts remarkably similar to the instant case.
Frederick Dennell Grim was convicted in Mississippi state court of selling
cocaine and sentenced as a habitual offender to life imprisonment without
parole. 816 F.3d at 299. The trial judge permitted Erik Frazure, “a technical
reviewer who had neither observed nor participated in the testing of the
substance,” to testify about the results of the controlled substance analysis. Id.
Gary Fernandez, “the analyst who performed the testing and generated the
report . . . did not testify.” Id. Grim objected under the Confrontation Clause
that Frazure’s review of Fernandez’s “work packet and report” supplied an
insufficient basis for confrontation. Id. at 299-300. The trial court overruled
the objection, concluding that “Frazure had enough dealings with the technical
review of the cocaine to be allowed to testify.” Id. at 299–300. Grim appealed
his conviction through the state courts and eventually, on habeas, to the Fifth
Circuit. Like Jenkins, he argued that the Mississippi Supreme Court’s
affirmance of his conviction violated Bullcoming. Id. at 302.



       4  We do not suggest that Justice Sotomayor’s concurrence constitutes clearly
established law. Carey v. Musladin, 549 U.S. 70, 74 (2006) (reminding that the phrase
“clearly established Federal law” refers to “the holdings, as opposed to the dicta, of [United
States Supreme Court] decisions” (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000))).
        5 It is incumbent on trial lawyers, alert to this issue, to clarify the level of involvement

and the precise data that a testifying scientist reviews.
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      Our opinion in Grim began by interpreting the bounds of what
Bullcoming clearly established:
      In Bullcoming the Court did not clearly establish the categorical
      rule . . . that when the prosecution introduces a forensic laboratory
      report containing a testimonial certification—made for the purpose
      of proving a particular fact—the only witness whose in-court
      testimony can satisfy the Confrontation Clause is the analyst who
      performed the underlying analyses contained in the report.
      ...
      [A]t most, the holding of Bullcoming clearly establishes that, when
      one scientist or analyst performs a test reported in a forensic
      laboratory report containing a testimonial certification—made for
      the purpose of proving a particular fact—and the prosecution
      introduces the report and certification to prove that particular fact,
      the Confrontation Clause forbids the prosecution from proving that
      particular fact through the in-court testimony of a scientist or
      analyst who neither signed the certification nor performed or
      observed the test reported in the certification.

Id. at 307. Grim then applied the holding of Bullcoming to its own facts:

      In the present case, Frazure examined the analyst’s report and all
      of the data, including everything the analyst did to the item of
      evidence; ensured that the analyst did the proper tests and that
      the analyst’s interpretation of the test results was correct;
      ensured that the results coincided with the conclusion in the
      report; agreed with a reasonable degree of scientific certainty with
      the examinations and results of the report; and signed the report.
      Grim cannot [show that he is entitled to habeas relief] because
      Bullcoming does not address this issue, i.e., it does not address
      the degree of involvement that Frazure had.


Id. at 310. The court held, accordingly, that Grim had not shown a violation of
clearly established law. Id. The same logic applies here because Gross had the
same responsibilities as Frazure including, notably, enough first-hand
involvement that he signed the Report.


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      Jenkins attempts to distinguish his case from Grim by urging that Gross
could not have offered a genuine analytical opinion with respect to the
substance’s weight because “Smith’s weighing of the substance did not generate
any data to review.” That argument asks this court to discredit Gross’s
testimony that, “based on [his] review of Ms. Smith’s analysis,” he concluded
“that the exhibit was weighed at 0.1 gram at least.” Our review is “limited to the
record that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Because Smith’s worksheet is not
in the record, we cannot know what data Gross used to form his conclusion about
the substance’s weight. We note that none of the state courts to examine this
case made a finding that no weight data existed for Gross to review. See Jenkins
v. State, 102 So. 3d 1063, 1064–65 (Miss. 2012), as modified on denial of reh’g
(Dec. 20, 2012) (“Gross reviewed all of the data submitted and the report
generated by Smith to ensure that the data supported the conclusions contained
in Smith’s laboratory report.”); Jenkins v. State, 102 So. 3d 273, 278 (Miss. Ct.
App. 2011) (noting that Gross’s conclusion was “based on his review of the data
contained in the file”); Transcript of Trial at 214, Robert L. Jenkins v. State of
Mississippi, 2010-KA-00203 (finding that Gross “did verify the results”). At this
stage of review, without Smith’s worksheet in the record, we decline to find as a
fact that no raw data existed to support Gross’s conclusion about the substance’s
weight.
      Moreover, as Grim observed, and as still holds true, the law does not
clearly establish what is required of a testifying analyst with a closer connection
to substance examinations than the analyst had in Bullcoming. Indeed, this
uncertainty has been noted by United States Supreme Court Justices on
multiple occasions. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 335
(2009) (Kennedy, J., dissenting) (“Today’s decision demonstrates that even in

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the narrow category of scientific tests that identify a drug, the Court cannot
define with any clarity who the analyst [that must be confronted] is.”); Williams
v. Illinois, 567 U.S. 50, 141 (2012) (Kagan, J., dissenting) (“What comes out of
four Justices' desire to limit Melendez–Diaz and Bullcoming in whatever way
possible, combined with one Justice's one-justice view of those holdings, is—to
be frank—who knows what.”); Stuart v. Alabama, 139 S. Ct. 36, 37 (2018)
(Gorsuch, J., dissenting from the denial of certiorari) (“Respectfully, I believe we
owe lower courts struggling to abide our holdings more clarity than we have
afforded them in this area.”).
      Therefore, we cannot say that the Mississippi Supreme Court’s decision
was contrary to or an unreasonable application of clearly established law. The
district court’s judgment is AFFIRMED.




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