IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60043

ROBERT L. JENKINS, 

 Petitioner - Appellant

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,

United States Court of Appeals

Fifth Circuit

FILED

December 13, 2018

Lyle W. Cayce

Clerk

 Case: 17-60043 Document: 00514760349 Page: 1 Date Filed: 12/13/2018
No. 17-60043

2

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.

BACKGROUND1

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”) 

 

1 The 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. 

 Case: 17-60043 Document: 00514760349 Page: 2 Date Filed: 12/13/2018
No. 17-60043

3

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.

 

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

contained. 

 Case: 17-60043 Document: 00514760349 Page: 3 Date Filed: 12/13/2018
No. 17-60043

4

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.

 Case: 17-60043 Document: 00514760349 Page: 4 Date Filed: 12/13/2018
No. 17-60043

5

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.

 Case: 17-60043 Document: 00514760349 Page: 5 Date Filed: 12/13/2018
No. 17-60043

6

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. 

 Case: 17-60043 Document: 00514760349 Page: 6 Date Filed: 12/13/2018
No. 17-60043

7

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 

 Case: 17-60043 Document: 00514760349 Page: 7 Date Filed: 12/13/2018
No. 17-60043

8

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 crossexamination 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, 

 Case: 17-60043 Document: 00514760349 Page: 8 Date Filed: 12/13/2018
No. 17-60043

9

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.

 Case: 17-60043 Document: 00514760349 Page: 9 Date Filed: 12/13/2018
No. 17-60043

10

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.

 Case: 17-60043 Document: 00514760349 Page: 10 Date Filed: 12/13/2018
No. 17-60043

11

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 

 Case: 17-60043 Document: 00514760349 Page: 11 Date Filed: 12/13/2018
No. 17-60043

12

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.

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