Perkins v. Davenport et al

Filing 28

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 1/11/16. (SAC )

FILED
2016 Jan-11 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
TIMMY GEORGE PERKINS
Petitioner,
v.
WARDEN CARTER F. DAVENPORT
and THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,

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) Case Number: 1:14-cv-2186-WMA-JHE
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Respondents.
MEMORANDUM OPINION
On December 28, 2015, the magistrate judge entered a Report
and Recommendation, (doc. 25), recommending that this petition for
writ of habeas corpus be dismissed with prejudice. Two days later,
the court received a motion for an order to “show cause why
Petitioner should not be released,” dated December 28, 2015. (Doc.
26). For the reasons stated in the magistrate judge’s report and
recommendation and other orders, the motion to show cause, (doc.
26), is DENIED.
On January 7, 2016, the court received Perkins’ objections to
the

magistrate

judge’s

report

and

recommendation.

(Doc.

27).

Perkins contends the magistrate judge failed to (1) conduct an
evidentiary hearing; (2) order the respondents to provide a copy of
the trial transcript; and (3) address the petitioner’s claims. (Id.
at 1).
The court has considered the entire file in this action,
together with the report and recommendation, and has reached an

independent conclusion that the report and recommendation is due to
be adopted and approved. On April 14, 2011, a jury in the Circuit
Court of Calhoun County, Alabama, convicted Perkins of two counts
of first-degree sodomy in violation of Alabama Code § 18-6-63
(1975). He received two life sentences to be served consecutively.
(Id.). Perkins appealed, (doc. 2-3), and later filed a Rule 32
petition, which were denied in the preliminary stages for failure
to pay the filing fee. (See www.alacourt.gov, CC-2009-898-60 and
CC-2009-899.60). On October 7, 2014, Perkins filed this habeas
petition arguing his trial counsel was constitutionally ineffective
for failing to interview, subpoena, and then call as a witness the
father of his alleged victims. (Doc. 1-2). Perkins further argues
that, because he is “actually innocent, his claim is not timebarred.
The magistrate judge concluded that Perkins’ claim is timebarred by 28 U.S.C. § 2244(d), and that Perkins’ “new evidence”
falls well-short of the threshold showing required by Schlup v.
Delo, 513 U.S. 289 (1995), and its progeny to show actual innocence
and excuse his untimeliness. (Doc. 25). Perkins fails to point to
any evidence that was not available at the time of trial “that it
is

more likely than not that no reasonable juror would have found

[him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327.
Alternatively, the magistrate judge found that, even if Perkins’
claims were not time-barred, they are procedurally defaulted and

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there is a lack of “new evidence” to excuse the default. (Id.). As
timeliness is a threshold consideration, the magistrate judge did
not err by not considering the merits of Perkins’ claim or by
denying

his

request

for

reconsideration,

transcripts,

and

an

evidentiary hearing. (See Docs. 16, 17, 19, 20, 21, 22, 23, and
24).
Accordingly, the court hereby adopts and approves the findings
and recommendation of the magistrate judge as the findings and
conclusions of this court. The petition for writ of habeas corpus
is due to be DISMISSED. A separate Order will be entered.
This court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotations omitted). This Court finds
Petitioner’s claims do not satisfy either standard.
DONE this 11th day of January, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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