United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge United States District Court
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
The Petition for Writ of Habeas Corpus
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
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.
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