Perkins v. Thomas et al
Filing
39
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 9/19/2019. (KAM)
FILED
2019 Sep-19 PM 02:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ROY E. PERKINS,
Petitioner,
vs.
JEFFERSON S. DUNN,
Commissioner, Alabama Department
of Corrections, WALTER MYERS,
Acting Warden, Holman Correctional
Facility,
Respondent.
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CASE NO. 7:14-CV-1814-SLB
MEMORANDUM OPINION
This case is presently before the court on Roy E. Perkins’s Petition for a Writ
of Habeas Corpus by a Person in State Custody under a Death Sentence, (doc. 1),1
seeking relief from his state-court conviction for capital murder and death sentence.
Perkins was convicted of capital murder and sentenced to death for the murder of
Cathy Gilliam. He has filed this petition seeking habeas relief pursuant to § 2254.
1
Reference to a document number, [“Doc. ___”], refers to the number assigned
to each document as it is filed in the court’s record and citations to page numbers in
such documents refer to page number assigned to the document in the court’s
electronic filing system. Unless otherwise indicated, citations to the state-court
records reflects the volume, tab, and page numbers assigned by respondent.
For the reasons set forth below, the court finds that Perkins’s Petition for a Writ of
Habeas Corpus is due to be denied.
TABLE OF CONTENTS
I. THE OFFENSE CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. THE SENTENCING ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IV. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V. EVIDENTIARY HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
VI. DISCUSSION OF PERKINS’S CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE
PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL,
EXCULPATORY EVIDENCE AND OFFERING A FALSE
STIPULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Due Process Violation Under Brady v. Maryland . . . . . . . . . . . . 20
2. Due Process Violation under Napue v. Illinois and Giglio v. United
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
B. THE STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO
COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH
THEIR PRETRIAL PREPARATIONS. . . . . . . . . . . . . . . . . . . . . . . 43
C. FAILURE TO GRANT A CHANGE OF VENUE . . . . . . . . . . . . . . . . 52
D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS
A FAIR TRIAL AND RELIABLE SENTENCE . . . . . . . . . . . . . . . 63
1. Overlooked Claims or Presumed Ruling on the Merits . . . . . . . . 69
2. Admission of Evidence of Prior Acts and Perkins’s Right to Due
Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
a. Evidence of the Rapes of D.W. and B.P. . . . . . . . . . . . . . . 79
b. Incident at Darlene Hall’s House . . . . . . . . . . . . . . . . . . . . 84
c. The Gray Truck and the .357 Magnum Handgun . . . . . . . 88
3. Failure to Give Limiting Instruction. . . . . . . . . . . . . . . . . . . . . . . 92
2
E. SUFFICIENCY OF THE EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . 96
F. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL . . . . . . 102
1. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
a. The Performance Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 104
b. The Prejudice Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
c. Deference Accorded State Court’s Decisions . . . . . . . . . 108
2. Failure to Strike Juror V.H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
3. Failure to Request a Limiting Instruction. . . . . . . . . . . . . . . . . . 132
4. Failure to Investigate and Present Available Mitigating Evidence
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
5. Failure to Challenge Perkins’s Rape Conviction . . . . . . . . . . . . 177
G. THE JURY’S CONSIDERATION OF EXTRINSIC EVIDENCE – THE
BIBLE IN THE JURY ROOM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
H. PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS
DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
1. The IQ Test Score – Intellectual Functioning . . . . . . . . . . . . . . 215
2. Adaptive Functioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
3. Failure to Grant Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . 220
I. THE BATSON CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
CERTIFICATE OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
I. THE OFFENSE CONDUCT
The following summary of the evidence relevant to the offense is taken from
the opinion of Alabama Court of Criminal Appeals on direct appeal.
On August 9, 1990, at approximately 4:00 p.m., 33-year-old Cathy
Gilliam was abducted at gunpoint from her home in the Tuscaloosa
County community of New Lexington. Candace Gilliam, Mrs. Gilliam’s
daughter, testified that she was in her bedroom at approximately 4:00
p.m. on August 9, when she heard her mother scream. After this
3
testimony, Candace, who was 14 years old at the time of the trial, was
excused from the courtroom; in lieu of further live testimony from
Candace, it was stipulated that her testimony would have been as
follows had she continued to testify: When she heard her mother scream
a second time, Candace went to the kitchen. There she saw a man
holding her mother and pointing a black pistol at her mother’s head.
She heard her mother yell for help and say “something about a rapist.”
[(Doc. 10, Vol. 11 at 1755.)] Candace watched as the man led her
mother outside to a vehicle parked behind her mother’s car. She could
not see the vehicle well, but did notice that it was bigger than a car and
that it was gray in color. At that point, Candace telephoned her
grandmother. Candace was unable to give a detailed description of the
man who had abducted her mother, but she did tell police that the man
had brown, straight hair and a thin beard, and that he was not much
taller than her mother.
Maudeen Hood, a resident of New Lexington who lived two to
three miles from the Gilliam residence, testified that at approximately
5:00 p.m. on August 9, Cathy Gilliam knocked on her back door.
According to Hood, Mrs. Gilliam stated that she had been shot and that
she was going to die, and she asked Hood to call her father-in-law and
to take her to the hospital. Hood stated that she helped Mrs. Gilliam into
her kitchen, where Mrs. Gilliam lay on the floor; Hood then telephoned
Mrs. Gilliam’s father-in-law. When no one answered, Hood telephoned
for help. Mrs. Gilliam told Hood that her assailant was about her
husband’s size, had long brown hair, a beard, and a mustache, and was
driving a gray pickup truck. Mrs. Gilliam also told Hood that her
assailant had brought her to Hood’s house and that he had said that he
did not mean to shoot her.
At approximately 5:15 p.m. on August 9, Norman Eldon
Willingham, an Alabama state trooper, and Harry Montgomery, Chief
Deputy Sheriff of the Tuscaloosa County Sheriff’s Department, arrived
at the Hood residence. Willingham testified that upon arriving, he saw
Mrs. Gilliam lying on the kitchen floor; she had a gunshot wound to her
chest. He stated that although Mrs. Gilliam had been shot in the chest,
he immediately noticed that there was no hole in the front of her shirt.
4
He stated that Mrs. Gilliam appeared pale, that she was having trouble
breathing, and that she was complaining of pain and asking for help.
When Willingham asked Mrs. Gilliam to describe her assailant, Mrs.
Gilliam told him that he was a white male, approximately 30 years old,
with medium-length hair and facial hair, and he was driving a gray
full-size pickup truck. In addition, Mrs. Gilliam told Willingham that
she had been sitting down when she was shot, and that it had been at
least one hour since the shooting. Montgomery testified that he asked
Mrs. Gilliam if she knew her assailant, and that she responded that she
did not.
Gary Wayne Hunnicut, fire chief with the Samantha Volunteer
Fire Department, testified that he was dispatched to the Hood residence
on August 9, 1990. He stated that when he arrived, Donnie Hallman, a
fellow volunteer, was already on the scene treating Mrs. Gilliam. In
addition, both Willingham and Montgomery were present. Hunnicut
testified that while he and Hallman were treating Mrs. Gilliam, he heard
either Willingham or Montgomery ask Mrs. Gilliam if Perkins was her
assailant. According to Hunnicut, Mrs. Gilliam “grunted” and nodded
her head in the affirmative. [(Id., Vol. 12 at 1987.)] In addition,
Hunnicut said he heard Mrs. Gilliam grunt and saw her nod her head in
the affirmative when either Willingham or Montgomery asked her if she
had been shot with a pistol.
Scott Sassaman, a paramedic with the Suburban Ambulance
Company, testified that he arrived at the Hood residence at
approximately 5:46 p.m. on August 9. Hallman was already working on
Mrs. Gilliam. Sassaman stated that he took over Mrs. Gilliam’s
treatment and put Mrs. Gilliam in “mass trousers” — air-filled pants that
move blood from the lower body to the upper extremities. [(Id. at
2023.)] Sassaman stated that he saw no gunpowder residue on Mrs.
Gilliam. According to Sassaman, Mrs. Gilliam was placed in the
ambulance at approximately 6:00 p.m. While in the ambulance,
Sassaman said, Mrs. Gilliam expressed concern about her family and
stated that she was going to die. Mrs. Gilliam died in the ambulance on
the way to the hospital.
5
On August 10, 1990, Kenneth Warner, the State Medical
Examiner for Tuscaloosa County, performed an autopsy on Mrs.
Gilliam. Warner testified that Mrs. Gilliam died from a gunshot wound
to her chest that destroyed her liver. He stated that, in addition to the
gunshot wound, there was a stab wound just above Mrs. Gilliam’s right
collarbone. The hyoid bone in Mrs. Gilliam’s neck was broken, Warner
said, and there was hemorrhaging in her neck muscles. Warner stated
that these injuries were consistent with a struggle having taken place.
Warner also stated that he found no evidence that Mrs. Gilliam had been
raped and that there was no gunpowder residue around the gunshot
wound. He testified that if Mrs. Gilliam was wearing a shirt at the time
of the shooting, the absence of gunpowder residue around the wound
would be meaningless, but that if Mrs. Gilliam was not wearing a shirt
when she was shot, the absence of gunpowder residue would indicate
that the fatal shot was fired from at least 18 inches away.
Vernon Hudson, Chief Deputy of the Fayette County Sheriff’s
Department, testified that he was driving south on Highway 63 on
August 9, 1990, at approximately 5:30 p.m., when he saw Perkins,
whom he knew personally, driving north in a gray pickup truck. Hudson
stated that he knew Perkins was wanted in connection with the shooting
of a woman in Tuscaloosa County, so he turned around and followed
Perkins. According to Hudson, he lost sight of the pickup truck briefly
when he turned around, but he saw dust on a dirt road off Highway 63
and he turned down the road. Hudson said he found a gray, 1979
Chevrolet pickup truck abandoned just off the dirt road, and that the
keys were in the ignition. Hudson stated that he notified a dispatcher
that he had found the truck Perkins was driving and that he stayed with
the truck until the homicide unit arrived, at which time, he said, he
turned the truck over to Investigator J.R. Simpson. Hudson testified that
he found the truck approximately one-half mile from the homes of
Perkins’s mother and grandmother.
Investigator Simpson testified that he responded to a call
regarding an abandoned truck believed to have been driven by Perkins.
He stated that when he arrived in Fayette County just off Highway 63,
he took photographs of the abandoned truck. He stated that the truck
6
had a gunshot hole in the front windshield and a gunshot hole in the roof
of the cab. On cross-examination, he stated that he believed both holes
were caused by shots fired from within the truck, most likely from the
driver’s side. The truck was towed to the homicide unit’s impound lot
and was “processed” for evidence by Simpson and Dr. John McDuffie,
a trace-evidence examiner with the Alabama Department of Forensic
Sciences.
At trial, Perkins stipulated to the following facts, which the trial
judge read to the jury:
“The defendant caused the death of Cathy Gilliam with a
.357 Magnum pistol. That’s number one. Number two, the
defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray
pickup truck shown in State’s Exhibit number 23. Number three,
Cathy Gilliam’s blood was found in the 1979 gray Chevrolet
pickup truck shown in State’s Exhibit number 23.”
[(Id., Vol. 13 at 2087.)]
The State presented evidence that Simpson and McDuffie found
a wallet containing Perkins’s driver’s license and a fragment of a
projectile in the gray truck. Fibers from the shorts Mrs. Gilliam was
wearing at the time of her abduction were also found in the truck.
Perkins’s fingerprints were found on the outside of the driver’s door of
the truck. Further, both the driver and front passenger seats contained
reddish stains; the stained portions of the seats were cut out and sent to
Dr. Phyllis T. Rollan, a forensic serologist with the Alabama Department
of Forensic Sciences. Dr. Rollan testified that the stain found on the
back of the front passenger seat was consistent with Mrs. Gilliam’s
blood.
After the abandoned truck was discovered, the police began
searching for Perkins in Fayette County. Bobby Mason, an enforcement
agent with the Alabama Alcoholic Beverage Control Board, testified
that he participated in the search for Perkins in Fayette County. He
stated that on August 11, 1990, he found a campsite in the woods near
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the homes of Perkins’s mother and grandmother. At the campsite,
Mason found quilts, cigarettes, various food items, wire-cutters, 10 feet
of rope, and a .357 Magnum handgun.
Baxter Pate, a police officer with the City of Northport, also
helped in the search for Perkins. Pate testified that at approximately
3:50 p.m. on August 12, 1990, he found Perkins lying on the ground in
the woods near the houses of his mother and grandmother. Pate stated
that Perkins was crying and whimpering and that he said, “Please,
please, don’t shoot me.” [(Id. at 2106.)] After Pate told Perkins not to
move, Perkins again stated, “Please, don’t shoot me,” and then said, “I
didn’t mean to do it . . . . I didn’t mean to hurt her.” [(Id. at 2107.)]
Pate stated that he called for backup, and that several officers arrived
and handcuffed Perkins. At the time of his arrest, Perkins had a gunshot
wound to his right knee that he suffered during a struggle with Mrs.
Gilliam.
Darlene Hall, a resident of New Lexington who lived
approximately one to two miles from the Gilliam residence, also testified
at trial. Hall stated that at approximately 3:50 p.m. on August 9, 1990,
Perkins came to her home and asked to use her telephone to call a tow
truck. According to Hall, she recognized Perkins from a picture in a
newspaper article she had been reading, and she immediately retrieved
a gun from her bedroom closet. Perkins left when he saw the gun. At
trial, Hall positively identified Perkins as the man who had come to her
home on August 9.
In addition to Hall’s testimony, the State also presented evidence
of two rapes allegedly committed by Perkins in the two weeks preceding
the abduction of Mrs. Gilliam – one committed on August 1, 1990, and
one committed on August 6, 1990. The State presented testimony from
the alleged rape victims, B.P. and D.W.; from the doctors who treated
them following the alleged rapes; from the nurses who administered the
rape kits; from Dr. Rollan, who performed DNA tests on the rape kits
from both victims and compared them to Perkins’s DNA; and from the
police officers who investigated the alleged rapes.
8
Perkins v. State, 808 So. 2d 1041, 1052-56 (Ala. Crim. App. 1999), aff’d 808 So. 2d
1143 (Ala. 2001), cert. granted and judgment vacated in part sub nom. Perkins v.
Alabama, 536 U.S. 953 (2002).
II. THE SENTENCING ORDER
The pertinent portions of the trial court’s sentencing order are set forth below:
STATUTORY AGGRAVATING CIRCUMSTANCES
1. Alabama Code § 13A-5-49(1) The capital offense was
committed by a person under sentence of imprisonment. This was
proved beyond a reasonable doubt. The Defendant was on parole for a
ten (10) year sentence in Case No. CC 83-9 in Fayette County, Alabama,
when he committed the offense, and thus was under a sentence of
imprisonment. Parole equates to being under sentence of imprisonment.
2. Alabama Code § 13A-5-49(2) The defendant was previously
convicted of another capital offense or a felony involving the use or
threat of violence to the person. This was proved beyond a reasonable
doubt. The Defendant was convicted of Rape, First Degree, in Case No.
90-96 in Fayette County, Alabama, on his plea, and Defendant was
sentenced to ninety-nine (99) years in prison. Defendant was
represented by Hon. Steven M. Nolen. Court records and testimony of
[B.P.] show this circumstance. The conviction must exist at the time of
sentencing, not necessarily at the time of the act.
3. Alabama Code § 13A-5-49(3) The defendant knowingly
created a great risk of death to many persons. This circumstance does
not exist.
4. Alabama Code § 13A-5-49(4) The capital offense was
committed while the defendant was engaged or was an accomplice in the
commission of, or an attempt to commit, or flight after committing, or
attempting to commit, rape, robbery, burglary or kidnapping. This was
9
proved beyond a reasonable doubt. This is an aggravating component
of the capital offense. The Defendant committed the capital offense
while he was engaged in . . . the commission of a kidnapping. The jury
verdict finding Defendant guilty of Murder Kidnapping in the First
Degree (capital murder) established this circumstance beyond a
reasonable doubt.
5. Alabama Code § 13A-5-49(5) The capital offense was
committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody. This circumstance does not exist.
6. Alabama Code § 13A-5-49(6) The capital offense was
committed for pecuniary gain. This circumstance does not exist.
7. Alabama Code § 13A-5-49(7) The capital offense was
committed to disrupt or hinder the lawful exercise of any governmental
function or the enforcement of laws. This circumstance does not exist.
8. Alabama Code § 13A-5-49(8) The capital offense was
especially heinous, atrocious or cruel compared to other capital offenses.
This circumstance does not exist.
The Court did not rely on any statutory aggravating circumstance
except for the three (3) circumstances above stated to have been proved.
The facts did not establish the existence of any other statutory
circumstance. The Court has not considered any fact or thing as a
non-statutory aggravating circumstance.
STATUTORY MITIGATING CIRCUMSTANCES
The Court has reviewed all statutory and non-statutory mitigating
circumstances, whether or not suggested by Defendant.
1. Alabama Code § 13A-5-51(1 ) The Defendant has no
significant history of prior criminal activity. This circumstance does
not exist. Defendant does have a significant history of prior criminal
activity as is shown by the presentence report, excluding the juvenile
10
charges. Defendant’s history shows crimes of violence, including a rape
for which he was on parole when the murder of Cathy Gilliam occurred.
There was also testimony of two rapes by Defendant within several days
previous to the date of said murder.
2. Alabama Code § 13A-5-51(2) The capital offense was
committed while the defendant was under the influence of extreme
mental or emotional disturbance. This circumstance does not exist.
Defendant had some degree of mental or emotional disturbance, but the
Court does not find it to be to an extreme degree. Dr. Goff stated that
Defendant could tell the difference between right and wrong at the time
of the offense in this case. The MMPI-2 results indicated Defendant
might have been trying to overstate or exaggerate any disturbance.
Defendant’s use of alcohol and drugs could have contributed to
his disturbance. If so, it was voluntary an his part. Defendant was also
able to elude large search parties for a few days during a manhunt for
him. Two isolated incidents of seizures seem to have been caused by
alcohol or other substance abuse.
3. Alabama Code § 13A-5-51(3) The victim was a participant in
the defendant’s conduct or consented to it. This circumstance does not
exist. There was no participation or consent by the victim.
4. Alabama Code § 13A-5-51(4) The defendant was an
accomplice in the capital offense committed by another person and his
participation was relatively minor. This circumstance does not exist.
There was no evidence of an accomplice, and the Defendant’s
participation was major. Defendant admitted causing the death of Cathy
Gilliam.
5. Alabama Code § 13A-5-51(5) The defendant acted under
extreme duress or under the substantial domination of another person.
This circumstance does not exist. No evidence showed Defendant was
under duress or that another person had anything to do with Defendant’s
actions in this case.
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6. Alabama Code 13A-5-51(6) The capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired. The Court finds that
this circumstance exists. Dr. Goff said that Defendant s intelligence was
in the lowest 6-7% or below 92% of the population. Defendant had a
long history of alcohol abuse with possible organic brain dysfunction.
Evidence also showed that Defendant abused drugs.
Dr. Goff also diagnosed Defendant as borderline personality
disorder with paranoid features. This most likely affected his judgment.
No psychosis was found through the evidence.
7. Alabama Code § 13A-5-51 (7) The age of the defendant at the
time of the crime. This circumstance does not exist. Defendant was
thirty (30) years of age at the time this offense occurred. Defendant’s
creative suggestion of his being morally immature is rejected.
Defendant has had extensive criminal justice experience. Age is not a
mitigating circumstance.
Therefore, only one statutory mitigating circumstance exists. As
to non-statutory mitigating circumstances considered, these include any
aspect of the Defendant’s character or record and any of the mitigating
circumstances of the offense and all other relevant mitigating
circumstances that the Defendant offered as a basis for a sentence of life
imprisonment without parole instead of death.
The Court considers the following non-statutory mitigating
circumstances to exist.
(1) Defendant took Victim near Ms. Hood’s house. However,
Victim said she’d been shot about an hour earlier. This was a belated
act, at best, and Defendant may have been merely getting rid of the
Victim.
(2) Defendant was drinking alcohol, taking pills and abusing
drugs during the general period of time of the offense. However, this
was voluntary.
12
(3) Defendant suffers from borderline personality disorder, is an
alcoholic, is of borderline intelligence, and probably has organic brain
dysfunction.
(4) Defendant was under mental or emotional disturbance,
although not to an extreme degree.
(5) Defendant lacked socialization and had a horrible childhood,
involving the death of his father, the drowning of his brother in his
presence, the sexual abuse of his sister by his stepfather in his presence,
physical abuse of Defendant by his stepfather, being run away from
home at a very early age and being sexually abused.
(6) Defendant’s intelligence is below 92% of the population, and
he has a full scale I.Q. of 76.
(7) Defendant and his family were very poor, and Defendant had
to “raise himself”. His mother and stepfather and other family members
were alcoholics.
The Court considered all of the evidence as to non-statutory
mitigating circumstances, including the testimony of Mr. Ed Owens, Dr.
John Goff and Ms. Kathleen Snow, the presentence investigation, the
videotape offered by Defendant and all other evidence submitted on
circumstances of the Defendant’s life, childhood, poor housing, and
family background. The Court carefully searched for and considered all
evidence in this case for circumstances of mitigation because this is a
capital murder case.
WEIGHING CIRCUMSTANCES
The Court has found three (3) existing statutory aggravating
circumstances beyond a reasonable doubt. The Court has found only
one (1) statutory mitigating circumstance to exist based on the evidence,
and has considered several existing non-statutory mitigating
circumstances. The Court has weighed the three (3) existing statutory
aggravating circumstances and has weighed the one (1) existing
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statutory mitigating circumstance and all of the existing non-statutory
mitigating circumstances. After having weighed the foregoing
circumstances, the Court has found that the three (3) existing statutory
aggravating circumstances greatly outweigh all existing mitigating
circumstances, both statutory and non-statutory.
In deciding the sentence, the Court has ordered, received and
reviewed the presentence investigation report of Mr. Carl Archibald,
except that the last paragraph of the report was not considered.
Therefore, Mr. Archibald’s concurrence with or recommendation of the
death sentence was not considered. The report did not contain any
victim impact statement.
The Court has considered the recommendation of the jury in its
advisory verdict, as required by law, but made this consideration in view
of the fact that the advisory jury verdict is not binding on the Court.
Although the advisory verdict does not require the Court to give the
death sentence, the Court has been unable to justify a sentence of life
imprisonment without parole after having weighed all of the
circumstances previously stated. Furthermore„ after full and thorough
consideration, the Court is compelled to accept the recommendation of
the jury. The Court fixes the Defendant’s punishment as death.
(Doc. 10, Vol. 24, Tab 45 at 348-54.)
III. PROCEDURAL HISTORY
In April 1994, a Tuscaloosa County jury found Perkins guilty of the capital
murder of Mrs. Gilliam and recommended, by a vote of ten to two, that he should be
sentenced to death. (Id., Vol. 16, Tab 25 at 2751; id., Vol. 18, Tab 36 at 3019.) On
June 3, 1994, the trial court followed the jury’s recommendation and sentenced
Perkins to death. (Id., Vol. 24, Tab 45 at 354.)
14
Perkins appealed his conviction and sentence to the Alabama Court of Criminal
Appeals, which affirmed in 1999. See Perkins, 808 So. 2d 1041. The Alabama
Supreme Court affirmed the Court of Criminal Appeals on March 30, 2001. Ex parte
Perkins, 808 So. 2d 1143 (Ala. 2001).
Perkins petitioned the United States Supreme Court for writ of certiorari. The
Court granted his petition. The Supreme Court vacated the judgment and remanded
the case “for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.
Ct. 2242, 153 L. Ed. 2d 335 (2002).”2 Perkins v. Alabama, 536 U.S. 953 (2002).
On remand, after declining to allow additional evidence to be presented, the
Alabama Supreme Court held:
Applying the plain-error standard of review, we hold that because,
applying the most common definitions of mental retardation, we find no
indication in the record that Perkins is mentally retarded, no reversible
error occurred and the imposition of the death sentence in this case is
not unconstitutional. Therefore, we affirm the judgment of the trial
court sentencing Perkins to death.
Ex parte Perkins, 851 So. 2d 453, 457 (Ala. 2002). The United States Supreme Court
denied Perkins’s petition for writ of certiorari October 6, 2003. Perkins v. Alabama,
540 U.S. 830 (2003).
2
The Atkins decision held that “executing a mentally retarded individual
violates the ban on cruel and unusual punishments found in the Eighth Amendment
to the United States Constitution.” Ex parte Perkins, 851 So. 2d 453, 454 (Ala.
2002)(citing Atkins, 536 U.S. at 317-18).
15
Perkins filed a petition for post-conviction relief, commonly referred to as a
Rule 32 Petition after Ala. R. Crim. P. 32, in the Circuit Court of Tuscaloosa County
on January 29, 2004. The Circuit Court held an evidentiary hearing on some of the
claims in Perkins’s Rule 32 Petition, as amended. On July 30, 2009, the Circuit Court
denied Perkins’s Rule 32 petition as amended. (See doc. 10, Vol. 56, Tab 135 at
4488-4534.) Later, on September 3, 2009, the Circuit Court amended its order to
deny two claims it had overlooked in its July 2009 order. (See id., Tab 137 at
4551-52.)
Perkins appealed the denial of his Rule 32 Petition and the Court of Criminal
Appeals affirmed. Perkins v. State, 144 So. 3d 457, 499 (Ala. Crim. App. 2012). The
Alabama Supreme Court granted, but later quashed his writ of certiorari. The
Supreme Court denied his petition for writ of certiorari on October 6, 2014. Perkins
v. Alabama, 135 S. Ct. 56 (2014).
On September 23, 2014, Perkins filed the instant Petition for a Writ of Habeas
Corpus by a Person in State Custody under a Death Sentence, pursuant to 28 U.S.C.
§ 2254.3 (Doc. 1.)
3
This case was reassigned to the undersigned on September 28, 2018. (See doc.
37.)
16
IV. STANDARD OF REVIEW
As to any claim “adjudicated on the merits in State court proceedings,” this
court may not grant the Petition
. . . unless the adjudication of the claim –
“(1) 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; or
“(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding. [42 U.S.C. § 2254(d).]
In applying this “highly deferential standard for evaluating
state-court rulings, . . . state-court decisions [must] be given the benefit
of the doubt.” [Cullen v.] Pinholster, 563 U.S. [170, 181], 131 S. Ct.
[1388], at 1398 [(2011)](internal quotation marks omitted). They must
be reviewed solely on “the record that was before the state court that
adjudicated the claim on the merits.” Id., at [181] . . . . And the prisoner
must rebut any state court factual findings he seeks to challenge by clear
and convincing evidence under § 2254(e)(1). Burt v. Titlow, 571 U.S.
[12], [18], 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013).
Brumfield v. Cain, 135 S. Ct. 2269, 2288-89 (2015). “Deciding whether a state
court’s decision involved an unreasonable application of federal law[, § 2254(d)(1),]
or was based on an unreasonable determination of fact[, § 2254(d)(2),] requires the
federal habeas court to train its attention on the particular reasons – both legal and
factual – why state courts rejected a state prisoner’s federal claims, and to give
appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191-92
17
(2018)(internal quotations and citations omitted). Nevertheless, “‘[e]ven in the
context of federal habeas, deference does not imply abandonment or abdication of
judicial review,’ and ‘does not by definition preclude relief.’” Brumfield, 135 S. Ct.
at 2277 (quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).
“When the evidence leads very clearly to the conclusion that a federal claim
was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an
unencumbered opportunity to make his case before a federal judge.” Johnson v.
Williams, 568 U.S. 289, 303 (2013). However, “When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary. That presumption stands unless
rebutted by evidence from the state court’s decision and the record that leads very
clearly to the conclusion that the federal claim was inadvertently overlooked in state
court.” Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231, 1245 (11th Cir.
2017)(internal citations and quotations omitted), cert. denied 139 S. Ct. 102 (2018).
The “backward-looking language” of § 2254(d) “requires an examination of
the state-court decision at the time it was made. It follows that the record under
review is limited to the record in existence at that same time i.e., the record before the
state court.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011). Also, the “[s]tate court
18
decisions are measured against [the Supreme] Court’s precedents as of ‘the time the
state court renders its decision.’” Id. (quoting Lockyer v. Andrade, 588 U.S. 63, 7172 (2003)).
V. EVIDENTIARY HEARING
Perkins has asked the court for an evidentiary hearing on two of his claims –
his claim that he is ineligible for the death penalty because he is intellectually
disabled and his claim that the prosecution used its peremptory strike in a racially
discriminatory manner. “If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) [and
(d)(2)] on the record that was before that state court.” Cullen, 563 U.S. at 185; see
Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015)(applying Cullen to claim
brought pursuant to § 2254(d)(2)). “Therefore, before a habeas petitioner may be
entitled to a federal evidentiary hearing on a claim that has been adjudicated [on the
merits] by the state court, he must demonstrate a clearly established federal-law
error[, § 2254(d)(1),] or an unreasonable determination of fact[, § 2254(d)(2),] on the
part of the state court, based solely on the state court record.” Landers, 776 F.3d at
1295 (emphasis added). “Once a petitioner has demonstrated such an error or
unreasonable determination, the decision to grant an evidentiary hearing rests in the
discretion of the district court.” Id. (internal citations and quotations omitted).
19
For the reasons set forth below, the court finds that Perkins has not
demonstrated his right to relief under § 2254(d), based on the state court record.
Therefore, his request for an evidentiary hearing is denied.
VI. DISCUSSION OF PERKINS’S CLAIMS
A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE
PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL,
EXCULPATORY EVIDENCE AND OFFERING A FALSE STIPULATION
Perkins alleges that the State violated Brady v. Maryland4 by failing to
disclose a video-taped interview of Candace Gilliam shortly after her mother’s
murder and that it violated Giglio v. United States5 by insisting that the stipulation as
to the content of Candace’s testimony include a false statement that she had heard her
mother cry, “Rapist,” as she was being abducted. For the reasons set forth herein, the
court finds that Perkins is not entitled to relief on either claim.
1. Due Process Violation Under Brady v. Maryland
In his Petition, Perkins states:
29. The State violated Perkins’s right to due process of law by
suppressing a video that was favorable to the defense and material. The
video would have critically weakened the State’s most compelling
evidence of intent to rape, strengthened the defense’s theory of the
crime, changed the character of the State’s remaining evidence, and
4
Brady v. Maryland, 373 U.S. 83 (1963).
5
Giglio v. United States, 405 U.S. 150 (1972).
20
dampened the State’s gripping emotional narrative. The state court’s
holding that suppression of the video did not undermine confidence in
the verdict is contrary to and involves an unreasonable application of
clearly established federal law. See 28 U.S.C. § 2254(d)(1). It also is
based on an unreasonable determination of the facts in light of the
evidence in the record. See 28 U.S.C. 2254(d)(2).
...
30. The State prosecuted Perkins for capital murder on the theory
that he intentionally killed Cathy Gilliam in the course of a first-degree
kidnapping. [(Doc. 10, Vol. 1 at 2-3; see Ala. Code § 13A-5-40 (a)(1)
(1975)(identifying the capital offense).)] To establish a first-degree
kidnapping, the State argued that Perkins abducted Gilliam with the
intent to sexually abuse her. [(Id., Vol. 11, Tab 16 at 1709; see Ala.
Code § 13A-6-43(a)(4) (1975)(defining first-degree kidnapping).)]
Under the relevant criminal statute, a person could be guilty of
first-degree kidnapping if he abducted someone with the intent to
sexually abuse the victim or with the intent to physically injure the
victim. Ala. Code § 13A-6-43 (a)(4) (1975). However, the prosecutor
stated in explaining his theory of the case before trial, “I don’t think
there’s any reasonable interpretation of this case other than [Perkins]
was going to take [Cathy Gilliam] and rape her, not that he was going to
physically injur[e] her . . . .” [(Doc. 10, Vol. 11, Tab 16 at 1709.)]
31. It was undisputed that Cathy Gilliam was not raped. [(Id.,
Vol. 12 at 2029; id., Vol. 13 at 2153-54.)] It also was undisputed that
Perkins brought Gilliam to a nearby home after the shooting, [(id., Vol.
12 at 1943)], and that Gilliam survived for at least one hour and spoke
about the crime to people around her, [(see, e.g., id. at 1920-21,
1941-45)]. When she recounted the incident to first responders and
others, she provided a detailed description of the man who abducted her,
[(id. at 1920, 1942)], described the man’s vehicle, [(id. at 1920, 1943)],
and described how she was positioned when she was shot, [(id. at 1920,
1930, 2028-29)], among other things. She said that the man who shot
her brought her to the home, [(id. at 1943)], and that he said he did not
mean to shoot her, [(id. at 1944-45)]. She said that the man had not
21
raped her. [(Id. at 2029.)] She did not mention an attempt to sexually
assault her.
32. The issue of whether Perkins had the intent to rape was
central to the defense. Perkins conceded that he was responsible for
shooting Gilliam. [(Id., Vol. 13 at 2087; id., Vol. 16 at 2659-60.)]
However, he maintained throughout the trial that the shooting was
accidental and that he did not intend to sexually assault her. [(Id., Vol.
16 at 2642-45, 2654-58.)] In his opening statement to the jury, Perkins’s
counsel stated that Perkins was “not guilty of capital murder” because
“the evidence in this case will not prove that Roy Perkins intended to
hurt Mrs. Gilliam.” [(Id., Vol. 11, Tab 18 at 1735-37.)] Counsel
emphasized this theme repeatedly; it was the backbone of the defense.
[(See, e.g., id. at 1737 (“He did not intend to hurt her, physically. And
he did not intend to rape her or sexually abuse her.”), 1740 (“[T]he
evidence in this case will show that Mr. Perkins never intended to kill
Mrs. Gilliam [and] that he never intended to physically harm her or
sexually abuse her.”); id., Vol. 15, Tab 22 at 2632-38 (arguing State
failed to prove intent to rape); id., Vol. 16 at 2641-45 (arguing State’s
evidence consistent with defense theory of no intent to rape), 2650-51
(explaining difference between first and second degree kidnapping and
arguing that Perkins did not intend to sexually abuse victim), 2652-56
(arguing State’s circumstantial evidence insufficient to convict Perkins
of capital murder because it failed to establish intent to sexually abuse),
2657 (arguing that if attempted rape had occurred, victim would have
mentioned it when she gave details of crime to police), 2657-58 (arguing
Perkins went to victim’s home because he was running from police),
2658 (“So there was never any intent to physically injure or sexually
abuse.”).
33. At trial, the State presented evidence of what Cathy Gilliam
said at the moment of the abduction from its first witness, Gilliam’s
fourteen-year-old daughter, Candace Gilliam. [(Id., Vol. 11, Tab 19 at
1742.)] Candace Gilliam testified that she was present when her mother
was abducted. [(Id. at 1742-46.)] She was the only eyewitness to that
event. After she became emotional on the stand, . . . there was a brief
recess and defense counsel offered to “stipulate to what she said she
22
saw,” [(id., Vol. 11, Tab 19 at 1748)]. The State represented that
Candace Gilliam would testify that she heard Cathy Gilliam “yell for her
help and something about a rapist.” [(Id. at 1755.)] The defense agreed
to the stipulation based on the State’s account of Candace Gilliam’s
statement.6 The defense had no reason to doubt the State’s
representations; the district attorney followed an open file policy, [(id.,
Vol. 1 at 86; id., Vol. 4 at 245)], and his “open file” did not contain any
statement of Candace Gilliam that contradicted the State’s version of
what her testimony would be, [(see id., Vol. 63 at 195-96; id., Vol. 64
at 420)].
34. After the stipulation was entered, the State used the “cry of
rapist,” [(id., Vol. 11, Tab 17 at 1734)], to argue that Perkins intended
to sexually assault Cathy Gilliam, [(see, e.g., id., Vol. 15, Tab 21 at
2616, 2622; id, Vol. 16, Tab 23 at 2669-70; see also id., Vol. 11, Tab 17
6
The following stipulation was read to the jury after Candace left the stand:
Miss Candace Gilliam would state as follows to this effect: When
she heard her mother screaming a second time, Candace went to the
kitchen to see what was happening. Candace . . . saw a man with what
she believes was a black pistol pointed at her mother’s head. And he
was holding her with his other hand. She heard a broom drop. Candace
heard both of them say something, but she is not sure what was said.
The man said: “Drop the broom.” She had a broom in her hand.
Candace heard her mother yell for her help and something about a rapist.
The man led her mother to a vehicle behind her mother’s car. She is not
sure what kind of vehicle, but she did see an antenna, gray windshield,
bigger than a car. At that point, Candace ran back to a room and called
her grandmother. Candace was unable to give a physical description of
the man other than . . . One, thin beard unlike her father’s beard. The
hair was straight like regular hair. Two, brown hair appeared to be
windblown hair. Three, not much taller than her mother. Four, she
believed the pistol was black in color. Candace was unable to pick
anyone out of a lineup.
(Doc. 10, Vol. 11, Tab 19 at 1754-55.)
23
at 1716)]. Defense counsel attempted to curb the prosecution’s use of
the stipulated testimony in closing argument:
MR. FREEMAN [District Attorney]: [. . .] [Candace
Gilliam] hears her mother saying the word, rapist . . . .
[D]id he say something to [Cathy Gilliam]? She used the
word, rapist.7
MR. STEVERSON [Defense Attorney]: Judge, at this
time, we’re going to object to that continuous – I think the
testimony that they brought out was that they heard
somebody say it. But I don’t think there’s any testimony
that [Mr. Freeman knows] who said it. I think that’s a
misstatement – to say that Mrs. Gilliam –
MR. FREEMAN: No, sir. Miss Candace Gilliam testified
that she heard her mother say the word, rapist.
7
In the prosecution’s rebuttal closing argument during the guilt phase of the
trial, the prosecutor said:
. . . Now something was said about why we put Candace Gilliam
on. I think it’s pretty obvious. She was an eye witness. She saw what
this man did. She saw that this man abducted her mother. This man
kidnapped her mother. Does that not make her a very important
witness? Of course, it does. She saw the man take her mother away
with one hand on . . . her shoulder and another hand with a gun [in it],
pointed at her mother’s head. Does that not make her an important
witness? Of course, it does. So the next thing we know is that about an
hour later – Oh, and another thing, she hears her mother saying the
word, rapist. Now that suggests perhaps that Cathy Gilliam had seen
that same newspaper that Mrs. Hall had seen just a little earlier. Cathy
Gilliam may very well have recognized Roy Perkins. How else would
she know immediately that he was a rapist, or did he say something to
her? She used the word, rapist.
(Doc. 10, Vol. 16, Tab 23 at 2668-69.)
24
MR. LEMLEY [Asst. District Attorney]: Your Honor, the
stipulation that I have right here in front of me, Candace
heard her mother yell for help and something about rapist.
MR. STEVERSON: Right. That’s exactly right.
MR. LEMLEY: She heard her mother yell for help and
something about rapist.
THE COURT: Okay. Well [the prosecutor] can draw his
inferences. Go ahead now.
[(Id., Vol. 16, Tab 23 at 2669-70.)]
35. The State’s most direct evidence that Perkins intended to rape
Gilliam was the stipulation that she “used the word, rapist.” This
statement was unconditionally admitted. The State’s remaining
evidence of intent consisted of collateral-act evidence. The main
collateral-act evidence alleged that Perkins had raped two women in the
weeks before this incident. [(See id., Vol. 12 at 1862-912.)] Other
collateral-act evidence involved the testimony of Darlene Hall, who said
that Perkins drove up to her house and acted suspiciously shortly before
the abduction of Cathy Gilliam. Hall’s testimony did not support the
State’s argument that Perkins intended to rape Cathy Gilliam. Hall
herself acknowledged that the man she identified as Perkins did not
threaten or attempt to harm her when they encountered each other on
Hall’s front porch. [(Id., Vol. 11, Tab 19 at 1778-79.)] In fact, she went
inside to make a telephone call for him. [(Id. at 1775-76.)]
36. Without evidence that Cathy Gilliam cried “rapist,” the
State’s case for capital murder was weak. There was little about the
abduction of Gilliam to indicate a rape motive. Without the cry of
“rapist,” the State would have had no substantial evidence to connect the
collateral acts to the Gilliam abduction.
37. On its own, the collateral-act evidence was consistent with
the defense’s theory. Defense counsel pointed out that, at the time of
25
Cathy Gilliam’s abduction, warrants had been issued, Perkins’s
photograph was in the local papers, and Perkins was “on the run, he
kn[ew] the police [were] coming after him.” [(Id., Vol. 16 at 2654.)]
There was no evidence that Perkins was wanted when the collateral
rapes occurred, which made the circumstances of Cathy Gilliam’s
abduction materially different. The collateral rapes provided an
explanation for why Perkins approached Darlene Hall and abducted
Cathy Gilliam: he was running from the police. [(See, e.g., id. at
2642-45, 2654-55.)] The collateral-act evidence was emotionally
charged and inflammatory, but it supported the defense’s theory that
Perkins did not intend to kill, injure, or sexually abuse Gilliam, which
would have been sufficient to avoid a capital murder conviction.
38. Unlike the collateral-act evidence, “Cathy’s cry of rapist,”
[(id., Vol. 11, Tab 17 at 1734)], could not be reconciled with the
defense’s theory; it radically undercut it. The State used the “cry of
rapist” to show that Perkins’s intent was the same as it had been during
the collateral crimes. [Id., Vol.15, Tab 21 at 2616; see id., Vol. 16, Tab
23 at 2669-70.)] The State had no other evidence that clearly connected
the collateral rapes to the abduction of Gilliam.
39. Perkins was found guilty of capital murder and sentenced to
death. [(Id., Vol. 2 at 288-89; id., Tab 3 at 354.)] His conviction and
sentence were affirmed on direct appeal. Perkins v. State, 808 So. 2d
1041 (Ala. Crim. App. 1999), aff’d sub nom. Ex parte Perkins, 808 So.
2d 1143 (Ala. 2001), vacated sub nom. Perkins v. Alabama, 536 U.S.
953 (2002), remanded sub nom. to Ex parte Perkins, 851 So. 2d 453
(Ala. 2002).
40. In Rule 32 proceedings, Perkins discovered that – despite the
State’s open-file policy and its representation at trial that Candace
Gilliam heard her mother’s “cry of rapist” – the State possessed a
videotaped interview in which Candace Gilliam stated that she did not
know what, if anything, her mother said when she was abducted. P.C.
5298 at 05:37-05:55. In the interview, which was conducted thirteen
days after the offense, a victims’ services officer repeatedly asked
Candace Gilliam if she heard her mother say anything at the time of the
26
abduction. Candace Gilliam repeatedly answered, “No.” When the
officer continued to press her, Candace Gilliam explicitly stated that she
could not make out any of her mother’s words. [(Id.)] It is undisputed
that the State concealed that video from the defense. [(Id., Vol. 56, Tab
135 at 4489.)]
41. In his Rule 32 petition, Perkins argued that the State’s
suppression of the video violated Brady v. Maryland, 373 U.S. 83
(1963). [(Id., Vol. 50, Tab 126 at 3391-97.)] Brady held that a
prosecutor violates the Due Process Clause when the following three
elements are met: (1) the prosecution suppresses evidence, (2) the
suppressed evidence is favorable to the defense, and (3) the suppressed
evidence is material to guilt or punishment. Brady, 373 U.S. at 87.
Additionally, the State’s knowing false representation about Candace
Gilliam’s testimony constituted a due process violation under Napue v.
Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150
(1972).
42. At the Rule 32 evidentiary hearing, Perkins’s trial counsel
testified that if they had known about the video, they would not have
agreed to the stipulation concerning Candace Gilliam’s testimony. [(See
doc. 10, Vol. 63 at 195-96; id., Vol. 64 at 420.)] Thus, had the video
been disclosed, “Cathy’s cry of rapist” either would not have been
presented, or it would have been undercut on cross-examination. Had
cross-examination occurred, the jury would have learned that the
suppressed video captured Candace Gilliam’s account less than two
weeks after the incident and included an extensive examination of
exactly what she saw and heard. She provided specific details about the
location of her mother’s car, P.C. 5298 at 06:45-07:50, relative positions
of objects, [(id.)], and the alleged weapon, [(id. at 05:05-05:35)]. And
she said repeatedly that she did not hear what, if anything, her mother
said.
43. The Rule 32 circuit court found that the State suppressed the
video. [(Doc. 10, Vol. 56, Tab 63 at 4488-89.)] The court also found
that the video “was favorable impeachment evidence.” [(Id. at 4490.)]
The court held that the video was not material, however, because it
27
would not have “changed the outcome of the case.” [(Id.)] The circuit
court denied relief. [(Id.)]
(Doc. 1 ¶¶ 29-43 [footnotes added].)
Perkins appealed the Rule 32 court’s decision and the Alabama Court of
Criminal Appeals affirmed the circuit court’s decision; it held:
Not only did Perkins fail to satisfy the requirements for
establishing a Brady violation, Perkins also failed to satisfy the
requirements for showing that this claim was based on newly discovered
evidence.8 Perkins did show that the State failed to disclose Candace’s
8
The Court of Criminal Appeals cited Alabama’s rule regarding newly
discovered evidence offered at the post-conviction stage, which states:
(e) Newly discovered material facts exist which require that the
conviction or sentence be vacated by the court, because:
(1) The facts relied upon were not known by the petitioner or the
petitioner’s counsel at the time of trial or sentencing or in time to
file a post-trial motion pursuant to Rule 24, or in time to be
included in any previous collateral proceeding and could not have
been discovered by any of those times through the exercise of
reasonable diligence;
(2) The facts are not merely cumulative to other facts that were
known;
(3) The facts do not merely amount to impeachment evidence;
(4) If the facts had been known at the time of trial or of
sentencing, the result probably would have been different; and
(5) The facts establish that the petitioner is innocent of the
crime for which the petitioner was convicted or should not have
28
statement and that the statement would have been relevant for
impeachment. However, contrary to Perkins’s assertions, the stipulated
testimony was not the only evidence that tended to establish Perkins’s
intent. Two witnesses testified that in the two weeks before the
kidnapping and murder of Gilliam, Perkins had raped them. B.P.
testified that she knew Perkins and that he had asked her to go with him
to return a car to a friend. She said that after they had been driving for
several minutes Perkins turned down a dirt road, put a knife to her
received the sentence that the petitioner received.
Ala. R. Crim. P. 32.1(e)(emphasis added), quoted in Perkins, 144 So. 3d at 468. The
court noted “that because of the conjunctive ‘and’ between (4) and (5), [Perkins] must
meet all five prerequisites of Rule 32.1(e), Ala. R. Crim. P., in order to prevail.”
Perkins v. State, 144 So. 3d at 468 (Ala. Crim. App. 2012) (quoting Payne v. State,
791 So. 2d 383, 397-98 (Ala. Crim. App. 1999)). However, Supreme Court precedent
does not require a showing of actual innocence, see Ala. R. Crim. P. 32.1(e)(5),
before a petitioner can establish a violation of Brady or Giglio sufficient to set aside
his conviction. Instead, at least in federal court, a showing of actual innocence “is
merely a gateway through which a habeas petitioner must pass to have his otherwise
procedurally barred constitutional claim [such as a Brady claim] considered on the
merits.” Cunningham v. Dist. Attorney's Office for Escambia Cty., 592 F.3d 1237,
1273 (11th Cir. 2010)(quoting Schlup v. Delo, 513 U.S. 298, 315 (1995))(internal
quotations omitted). Therefore, any Brady or Giglio claim that is not procedurally
barred may be raised in this court without a showing of actual innocence; the
petitioner must show that the withheld favorable evidence is material, and “there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419,
433.
Moreover a procedurally barred claim may be raised if the petitioner can show
either cause and prejudice or actual innocence.
Nevertheless, because the Alabama court addressed the merits of Perkins’s
Brady and Giglio claim and did not dispose of these claims on this procedural ground,
the validity of Alabama’s rule requiring a showing of actual innocence to establish
a Brady and/or Giglio claim will not be addressed.
29
throat, and raped her. D.W. testified that, as she was getting out of her
vehicle at her grandmother’s house, Perkins came up behind her and put
a knife to her throat. She said that he drove her to an abandoned
building and raped her. Darlene Hall also testified that minutes before
Gilliam was abducted, Perkins came to her house, knocked on her door,
asked if her husband was at home, and asked to use her telephone to call
a tow truck because, he said, his car was stuck in a field. Hall said that
she did not open the door and that Perkins left. On direct appeal, this
Court held that the collateral acts were admissible to show Perkins’s
intent. Perkins, 808 So. 2d at 1084.
Perkins failed to establish that there is a reasonable probability
that, had Candace’s pretrial statement been disclosed, the outcome of the
trial would have been different. Williams, 710 So. 2d at 1296-97.
Therefore, this Court agrees with the circuit court that Perkins failed to
meet his burden of proving a Brady violation.
Perkins, 144 So. 3d at 468-69 (footnote added).
In his Petition, Perkins argues, “The state court’s ruling that the suppressed
video was not material was contrary to and involved an unreasonable application of
clearly established federal law, see 28 U.S.C. § 2254(d)(1), and was based on an
unreasonable determination of the facts in light of the evidence in the record, see 28
U.S.C. § 2254(d)(2).” (Doc. 1 ¶ 45.)
Under clearly-established Supreme Court precedent, “[t]here are three
components of a true Brady violation: [1] The evidence at issue must be favorable
to the accused, either because it is exculpatory or because it is impeaching; [2] that
evidence must have been suppressed by the State, either willfully or inadvertently;
30
and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999). “Such evidence is material ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Id. at 280 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985);
citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)). “Consequently, the issue
before [the court] . . . is legally simple but factually complex. [The court] must
examine the trial record, evaluate the withheld evidence in the context of the entire
record, and determine in light of that examination whether there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would
have been different.” Turner v. United States, 137 S. Ct. 1885, 1893 (2017). “The
question is not whether the defendant would more likely than not have received a
different verdict with the [withheld] evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles,
514 U.S. at 434. “In other words, favorable evidence is subject to constitutionally
mandated disclosure when it ‘could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.’” Cone v. Bell, 556 U.S.
449, 470 (2009)(quoting Kyles, 514 U.S. at 435 and citing Banks v. Dretke, 540 U.S.
668, 698-99 (2004) and Strickler, 527 U.S. at 290). “[U]ndisclosed evidence can
require a new trial even if it is more likely than not that a jury seeing the new
31
evidence would still convict.” Hays v. State of Ala., 85 F.3d 1492, 1498 (11th Cir.
1996).
However, withheld evidence is not material if, when considered in the context
of the entire record, “it is too little, too weak, or too distant from the main evidentiary
points” of the case. See Turner, 137 S. Ct. at 1894.
Perkins argues:
Under [the] circumstances, “[d]isclosure [of the interview of
Candace] would have resulted in a markedly weaker case for the
prosecution and a markedly stronger one for the defense.” Kyles, 514
U.S. at 441. A video that undercuts a prosecutor’s most direct,
proximate evidence of intent is material to guilt and should be disclosed,
particularly in a capital case. Disclosure would have severed the link
between the collateral acts and the Gilliam abduction, putting the whole
case in a different light. And it would have created a reasonable
probability of a different result by allowing the jury to fairly consider the
defense’s theory based on all of the available information. The state
court’s contrary conclusion, which rests solely on a finding of other
admissible evidence to support intent, is objectively unreasonable.
(Doc. 1 ¶ 55 [footnote omitted].) The court disagrees.9
Perkins’s defense to the capital charge was that he did not abduct Mrs. Gilliam
with the intent to rape her or otherwise to physically harm her and that he did not
9
Although, for the reasons set forth herein, the court finds that the withheld
video was not material and, thus, will not support a claim for habeas relief, the failure
to disclose the video was an egregious violation of the district attorney’s duty.
Nothing set forth in this Memorandum Opinion should be interpreted as this court
approval of the prosecutors’ conduct in failing to produce the video of Candace
Gilliam’s statement in a timely manner.
32
intend to kill her when he shot her. Therefore, he was not guilty of kidnapping in the
first degree and not guilty of capital murder, although he may have been guilty of a
lesser-included offense such as felony murder. The State argued that Perkins
abducted Mrs. Gilliam with the intent to rape or sexually assault her. In addition to
Candace’s statement that she saw her mother being abducted at gunpoint and heard
her mother say “something about rapist,” the State based its case on two rapes
perpetrated by Perkins in the two weeks prior to his kidnaping Mrs. Gilliam; the fact
that he had a gun and a knife; the forensic evidence from the truck showing several
bullet holes; and the autopsy report.
Considering the entire record, the court finds that the Alabama court’s
determination – that the withheld video of Candace’s interview, in which she said she
did not hear what her mother said, is not material and the failure to disclose it did not
prejudice Perkins’s defense – is not unreasonable. The evidence presented at trial
showed that Perkins had raped two women in the days prior to his kidnapping of Mrs.
Gilliam. He had a gun and a knife when he took Mrs. Gilliam from her home.
However, he did not rape Mrs. Gilliam and, after he shot Mrs. Gilliam, he let her go
near Maudeen Hood’s house. When she got to Ms. Hood’s house, Mrs. Gilliam was
able to speak; she told Ms. Hood and first responders that she had not been raped and
that Perkins had told her that he did not mean to shoot her.
33
Other evidence showed that there was a struggle for the gun during which
Perkins was shot in the leg and Mrs. Gilliam was shot in the chest. The truck also had
gunshot holes in the windshield and the roof of the cab proving multiple gunshots
were fired within the cab of the truck. Mrs. Gilliam died from a gunshot wound to
the chest that destroyed her liver. No gunpowder residue was found around her
wound or on her clothing indicating that she was shot from a distance of about 18
inches. Moreover, there was no hole in her shirt from the gunshot proving that her
shirt was not covering her chest at the time she was shot, which may indicate that
Perkins was taking her clothes off at the time he shot her. She also had wounds to her
neck that appeared to be knife wounds.
In light of these facts whether Candace heard Mrs. Gilliam called out “rapist”
or whether, as Candace stated in her first interview, she did not hear what her mother
said, does not appear to be material. Mrs. Gilliam was taken from her home at gun
point by Perkins, who had raped two women in as many weeks. Perkins shot Mrs.
Gilliam in an apparent struggle for the gun and at the time of the shooting Mrs.
Gilliam’s shirt was raised, exposing her abdomen.
There is no question that the State
failed to disclose relevant impeachment evidence that it had a duty to disclose. The
court finds some possibility that, had Candace testified that she did not hear what her
mother said, the jury may have credited the defense’s position that Perkins did not
34
kidnap Mrs. Gilliam with the intent to rape her or to otherwise cause her physical
harm.
However, “As a condition for obtaining habeas corpus from a federal court,
[Perkins] must show that the state court’s ruling on [his Brady] claim . . . was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. at 103 (emphasis added). “Phrased more simply and maybe a little
more clearly: if some fairminded jurists could agree with the state court’s decision,
although others might disagree, federal habeas relief must be denied.” Hill v.
Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011)(quoting Loggins v. Thomas, 654
F.3d 1204, 1220 (11th Cir. 2011))(internal quotations omitted).
Considering the evidence at trial in light of Candace’s prior statement, the court
cannot say that no fair-minded jurist could agree with the Alabama court’s decision
that “Perkins [had] failed to establish that there [was] a reasonable probability that,
had Candace’s pretrial statement been disclosed, the outcome of the trial would have
been different.” Perkins, 144 So. 3d at 469. Although some fair-minded jurists might
disagree, trial evidence of the two sexual assaults occurring days before his abduction
of Mrs. Gilliam and of Perkins’s abduction of Mrs. Gilliam at gunpoint – even
assuming Mrs. Gilliam did not say anything about a rapist – is strong evidence that
35
Perkins abducted Mrs. Gilliam with the intent to sexually assault her. Therefore, the
Alabama court’s decision that Perkins did not establish a Brady violation is entitled
to deference.
Based on the foregoing, the court finds that Perkins is not entitled to any relief
based on his claim that he was denied due process by the prosecution’s failure to
disclose the tape of Candace’s initial interview.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
2. Due Process Violation under Napue v. Illinois and Giglio v. United States
Perkins alleges that “the State’s knowing false representation about Candace
Gilliam’s testimony constituted a due process violation under Napue v. Illinois, 360
36
U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972).” (Doc. 1 ¶ 41.)
He argues:
A truthful stipulation would have stated that Candace Gilliam
might testify that she did not hear her mother say any words, as she told
the police in the videotaped interview. The stipulation offered by the
prosecution did not have that qualification. Therefore, the stipulation
was false, the jury was given a materially untrue depiction of Candace
Gilliam’s credibility, and Perkins was denied a reliable determination of
guilt.
(Doc. 1 ¶ 60 [emphasis added].) He contends that the Alabama court’s decision
“adjudicated the claim on the merits and denied relief . . . [w]ithout reaching the
question of whether the false testimony was material . . . because Perkins had not
called Candace Gilliam to testify at the Rule 32 hearing.” (Id. ¶ 62.) Therefore, he
contends that the state court’s decision is not entitled to any deference because –
64. Clearly established federal law holds “that the Fourteenth
Amendment cannot tolerate a state criminal conviction obtained by the
knowing use of false evidence.” Miller v. Pate, 386 U.S. 1, 7 (1967).
The rule against using false evidence applies not only to falsification of
the substance of a witness’s testimony, but also to false representations
about a witness’s credibility. Giglio, 405 U.S. at 154.
65. To determine whether a prosecutor knew that evidence was
false, clearly established federal law holds that a court must determine
whether “the prosecution knew, or should have known,” that the
evidence was false. Agurs, 427 U.S. at 103. Knowledge of the
prosecutor’s “superiors” and “associates” is attributed to the prosecutor
regardless of actual knowledge. See, e.g., Giglio, 405 U.S. at 154. And
knowledge of falsity may be inferred from the record. See, e.g., Miller
v. Pate, 386 U.S. at 6.
37
66. The state court decision is contrary to clearly established
federal law under 28 U.S.C. § 2254(d)(1). The test that applies to this
sort of claim asks whether the “prosecution deliberately misrepresented
the truth.” Miller v. Pate, 386 U.S. at 6. Instead of addressing that
issue, the state court addressed the separate issue of what Candace
Gilliam would say if called as a witness. Perkins, [144 So. 3d at 470]
(“Candace did not testify.”). However, Candace Gilliam’s testimony
would not undo the prosecutor’s misrepresentation as to Candace
Gilliam’s account. Because the state court chose to focus on what the
witness did not say at the Rule 32 hearing instead of addressing what the
prosecutor actually did at trial, its decision is contrary to clearly
established federal law under 28 U.S.C. § 2254(d)(1). See Lafler v.
Cooper, 132 S. Ct. 1376, 1390 (2012) (holding state court decision
contrary to federal law where state court resolved claim by addressing
wrong issue).
67. Similarly, the state court decision involved an unreasonable
application of clearly established federal law under 28 U.S.C.
§2254(d)(1) by failing to consider all of the facts in support of this
claim. The state court’s analysis consisted of an observation that
“[i]nconsistent statements by a witness do not, by themselves, establish
that one statement is false and the other is true.” Perkins, [144 So. 3d
at 470]. The state court unreasonably ignored that the misconduct here
was not based on the witness’s two statements, but on a stipulation that
the prosecutor represented falsely as the witness’s only statement.
[(Doc. 10, Vol. 11, Tab 19 at 1748.)] The state court’s decision
involved an objectively unreasonable application of clearly established
federal law under 28 U.S.C. § 2254(d)(1) because the court failed to
recognize the significance of the stipulation and the circumstances
surrounding it. See Rompilla v. Beard, 545 U.S. 374, 389-90
(2005)(holding “the state courts were objectively unreasonable” in
denying claim where totality of circumstances supported relief).
68. The state court decision is also based on an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(2). The evidence
in the record established that the prosecutor misrepresented Candace
Gilliam’s account of what she witnessed. The state court’s failure to
38
consider that evidence and make that finding, in addition to being an
unreasonable application of law, constitutes an unreasonable
determination of the facts. See Adkins, 710 F.3d at 1254 (“Because the
court overlooked material facts in its factfinding, it . . . unreasonably
determined the facts . . . .”).
69. The state court did not address whether the false evidence
was material. See Perkins, [144 So. 3d at 469-70]. Therefore, this issue
was not adjudicated on the merits by the state court and should be
reviewed de novo by this Court. See 28 U.S.C. § 2254(d); see also
Wiggins v. Smith, 539 U.S. 510, 534 (2003)(“[O]ur review is not
circumscribed by a state court conclusion with respect to [one part of a
two-part test], as neither of the state courts below reached this prong of
[test].”).
(Id. ¶¶ 64-69.)
The Court of Criminal Appeals rejected Perkins’s claim on appeal; it held:
Perkins next argues that the State violated his constitutional right
to due process by knowingly using false testimony by informing the
defense that Candace would testify that her mother yelled something
about a rapist as she was being forced from the house. According to
Perkins, the State’s representation was false because a pretrial statement
by Candace indicated that she did not know what her mother yelled.
...
To prove a Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972), violation, the petitioner must show that: (1)
the State used the testimony; (2) the testimony was false; (3) the State
knew the testimony was false; and (4) the testimony was material to the
guilt or innocence of the accused. Williams v. Griswald, 743 F.2d
[1533,] 1542 [(11th Cir. 1984)]. “[T]he defendant must show that the
statement in question was ‘indisputably false,’ rather than merely
misleading.” Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000)
(quoting United States v. Lochmondy, 890 F.2d 817, 823 (6th Cir.
39
1989)). “The burden is on the defendants to show that the testimony
was actually perjured, and mere inconsistencies in testimony by
government witnesses do not establish knowing use of false testimony.”
Lochmondy, 890 F.2d at 822. “[I]t is not enough that the testimony is
challenged by another witness or is inconsistent with prior statements,
and not every contradiction in fact or argument is material.” United
States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991)(citing United States
v. Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980)). “[T]he fact that a
witness contradicts himself or herself or changes his or her story does
not establish perjury.” Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D.
Mich. 2003)(citing Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D.
Mich. 2001)).
At the postconviction evidentiary hearing, Candace did not testify.
No evidence was presented that the stipulated testimony was, in fact,
false. Inconsistent statements by a witness do not, by themselves,
establish that one statement is false and the other is true. See United
States v. Payne, supra. Accordingly, Perkins failed to meet his burden
of proving a Giglio violation, and the circuit court correctly denied relief
on this claim.
Perkins, 144 So. 3d at 469-70.
Supreme Court law “has long been established that the prosecution’s
‘deliberate deception of a court and jurors by the presentation of known false
evidence is incompatible with rudimentary demands of justice.’” Banks, 540 U.S. at
694 (quoting Giglio, 405 U.S. at 153 (quoting Mooney v. Holohan, 294 U.S. 103, 112
(1935)))(emphasis added). Nothing in any Supreme Court case implies that a habeas
petitioner can state a claim based on the prosecutor’s knowing presentation of false
testimony or failure to correct testimony he knows to be false without showing that
40
the testimony is actually false; or that a prosecutor has deliberately presented known
false evidence when he represents the substance of a witness’s statement without
equivocation, even though the witness has given inconsistent statements over the
course of an investigation. Other than proof of the undisclosed interview, Perkins
failed to show that the prosecutors knew the stipulation – Candace heard her mother
cry “rapist” – was false.
The law is well established that:
[A] prior statement that is merely inconsistent with a government
witness’s testimony is insufficient to establish prosecutorial misconduct.
United States v. Michael, 17 F.3d 1383, 1385 (11th Cir. 1994)(“We
refuse to impute knowledge of falsity to the prosecutor where a key
government witness’[s] testimony is in conflict with another’s statement
or testimony.”); Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir. 1996)
(determining there was no due process violation where “there has been
no showing that [the witness’s] later, rather than earlier, testimony was
false”); United States v. Gibbs, 662 F.2d 728, 730 (11th Cir. 1981)
(“Though knowing prosecutorial use of false evidence or perjured
testimony violates due process . . . it is not enough that the testimony .
. . is inconsistent with prior statements.”); United States v. Brown, 634
F.2d 819, 827 (5th Cir. Jan. 1981)(“[D]ue process is not implicated by
the prosecution’s introduction or allowance of false or perjured
testimony unless the prosecution actually knows or believes the
testimony to be false or perjured; it is not enough that the testimony is
challenged by another witness or is inconsistent with prior statements.”).
United States v. McNair, 605 F.3d 1152, 1208-09 (11th Cir. 2010)(emphasis added).
In dicta the Supreme Court has held, “A mere claim that a witness gave inconsistent
testimony is not enough to charge the prosecution’s knowing use of false testimony;
41
it may well be that the witness’[s] subsequent statements were true, in which event
the claim of inconsistency is not a constitutional objection.” Price v. Johnston, 334
U.S. 266, 288 (1948)(citing Mooney). Although some fair-minded jurists might
disagree, the Alabama court’s decision – that Perkins failed to prove a Giglio
violation because he did not prove that the stipulated testimony was, in fact, false, as
opposed to merely inconsistent with Candace’s pretrial interview – was not contrary
to or an unreasonable application of clearly established law or an unreasonable
determination of the facts.
Based on the foregoing, the court finds that Perkins is not entitled to any relief
based on his claim that he was denied due process by the prosecution’s presentation
of false testimony or failure to correct false testimony.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
42
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
B. THE STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO
COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR
PRETRIAL PREPARATIONS
Perkins claims, “The state trial court violated [his] right to counsel by removing
his lawyers, who had represented [him] for a year and were willing to continue
representing him, where there was no serious potential for a conflict of interest or any
other harm, and removal served no legitimate state interest.” (Doc. 1 ¶ 72.) He
alleges:
73. Roy Perkins was arrested on August 12, 1990, and charged
with capital murder. [(Doc. 10, Vol. 1 at 2-3, 134.)] The trial court
formally appointed the Tuscaloosa County Public Defender’s Office
[hereinafter PDO] to represent him 19 months later. [( Id. at 7 [March
10, 1992].)] Ricky McKinney and George Taylor became Perkins’s
counsel and represented him for the next year. [(See, e.g., id. at 7-14,
17-39, 47-58; id., Vol 2, Tab 2 at 290-92; id., Vol. 3 at 25-27; id., Vol.
19, Tab 41 at 25-32.)]
74. By late-October 1992, Perkins’s counsel had undertaken
substantial preparation of a defense. Counsel had requested a
mental-health evaluation. [(Id., Vol. 1 at 18 [July 31, 1992].)] They had
begun seeking expert assistance and filed a motion to proceed ex parte
on requests for funds in order to protect “the independence of the
defense” and avoid disclosure of trial strategy. [(Id. at 20-39.)] They
moved for permission to allow Perkins to participate in his defense as
co-counsel. [(Id. at 47, ¶ 4 [Oct. 7, 1992].)] They had begun compiling
evidence in support of a motion for change of venue. [(Id., Vol. 4 at
226.)] Most importantly, they understood the evidence and issues likely
43
to arise at both the guilt and penalty phases, as reflected in a discovery
motion that asked for disclosure of statements or recordings of specific
witnesses. [(Id., Vol. 1 at 52-54 (Oct. 7, 1992).)] Counsel also sought
information about the physical evidence and tests performed by the
Alabama Department of Forensic Sciences, [(id. at 54-55)], information
about Perkins’s mental state and life history, [(id. at 55-57)], and
information relevant to the existence of aggravating or mitigating
circumstances, [(id. at 54)], among other things.
75. Approximately a year after Perkins’s counsel began preparing
a defense, the prosecution filed a motion to disqualify the [PDO] from
representing Perkins. [(Id. at 63-64 (February 16, 1993).)] The motion
alleged that a former police detective named Shirley Fields had left the
Tuscaloosa Police Department and accepted new employment as an
investigator for the [PDO]. [(Id. at 63.)] This was a problem, according
to the motion, because Fields was “deeply” involved in Perkins’s
prosecution, held confidential information, and would be “consulted
extensively” during the prosecution’s trial preparations. [(Id. at 64.)]
76. The prosecution’s motion was heard the following month.
Shirley Fields testified at the hearing. He said that he was not deeply
involved in the prosecution, or even actively involved in it. [(Id., Vol.
2, Tab 5 at 14.)] According to Fields, “My only involvement in Mr.
Perkins’[s] case was that I was present when Investigator Simpson
processed a truck at the homicide office,” [(id. at 12)], and “Simpson
actually did all of the processing,” id. Fields testified that he had not
questioned any of the witnesses in the case, that he had no independent
recollection of any conversations that he had with any of the
investigators or prosecutors assigned to the case, and that he had no
active role in supervising any of the officers assigned to the case apart
from “the process of processing the vehicle.” [(Id. at 13.)] With regard
to the prosecution’s anticipated need for extensive consultations with
Fields, Fields disavowed participation in trial strategy, [(id. at 14)], and
could not recall a single conversation “with anyone from the District
Attorney’s Office regarding this particular case,” [(id. at 13)].
44
77. Perkins wanted the public defender’s office to represent him,
[(id., Vol. 3 at 27)], the public defender’s office was willing to represent
Perkins, [(id. at 28)], and Perkins opposed the prosecution’s motion,
[(id. at 24-26)]. Based on the evidence presented at the hearing,
Perkins’s counsel argued that Fields
was not substantially participating in the case, did not
participate in the investigation beyond being present and
perhaps discussing with Officer Simpson while Officer
Simpson performed the processing of the vehicle. He did
not participate in the interview of any witnesses. He did
not participate in the interview of the defendant. His . . .
actual supervision in this particular case is virtually
nonexistent . . . . We don’t feel under the circumstances
that he did substantially participate in the investigation of
Mr. Perkins’[s] case and that under those circumstances,
there is not an actual conflict . . . .
[(Id. at 26.)] Counsel represented that Perkins waived any potential
conflict related to the possibility that Fields might be called as a witness
at trial and cross-examined by a co-worker, although it was “difficult to
envision” that occurring. [(Id.)] [Footnote] Counsel added, “We feel
like under the circumstances, he has developed a relationship with his
attorney, Mr. McKinney, a trust in Mr. McKinney and a confidence in
that representation which would be materially damaged if he was
required to change counsel at this time.” [(Id. at 27.)]
[Footnote:] As expected, Fields did not testify at Perkins’s trial.
78. The trial court granted the prosecution’s motion and
disqualified the [PDO]. [(Id., Vol. 1 at 65 (March 19, 1993).)] Several
weeks later, the public defender’s office filed an unopposed motion for
reconsideration and factfinding. [(Id. at 70.)] The trial court granted the
motion and entered a new order stating that there was “no evidence” of
a conflict of interest under the ethics rules, but that the [PDO] was
disqualified in order to avoid the “appearance of impropriety.” [(Id. at
71 (April 19, 1993).)]
45
79. In the months that followed, the trial court appointed former
Tuscaloosa County District Attorney’s Office prosecutors Dennis
Steverson and James Smith to represent Perkins. [(Id., Vol. 2, Tab 2 at
292-93.)] They met with Perkins for the first time in August 1993. [(Id.
at 293; id., Vol. 1 at 74.)]
(Doc. 1 ¶¶ 73-79 and n.8 [footnote 7 omitted].)
On direct appeal, the Alabama Court of Criminal Appeals found:
In February 1993, over a year before Perkins’s trial, the State filed
a motion to disqualify the public defender’s office from representing
Perkins based on a potential conflict of interest. The State argued that
the hiring of Shirley Fields – a former captain in the Tuscaloosa
homicide unit and second in command of that unit during its
investigation of Mrs. Gilliam’s murder – as an investigator with the
public defender’s office, created a potential conflict of interest because
Fields had been involved in the murder investigation in a supervisory
capacity, was privy to confidential government information concerning
the case that was not subject to disclosure, and was a possible witness
for the State at Perkins’s trial. At a hearing on the motion in March
1993, Fields testified that he played a supervisory role in the
investigation of Mrs. Gilliam’s death, that he was privy to sensitive
information about the investigation, that he participated in the
processing of one of the State’s most important pieces of evidence (the
gray pickup truck), but that he had not been actively involved in every
aspect of the investigation. In addition, he stated that, in the past, the
district attorney’s office had often consulted him about trial strategy in
cases in which he had played a supervisory role. Following Fields’s
testimony, the public defender representing Perkins argued against the
motion, stating that although there was a potential conflict if the State
ultimately called Fields to testify, Perkins was willing to waive that
potential conflict. After the hearing, the trial court entered a written
order granting the State’s motion to disqualify the public defender’s
office, stating, in pertinent part:
46
“This Court finds no evidence of a violation of Rule of
Professional Responsibility 1.11. However, the nature of this
case and the scrutiny to which it would be subjected upon
possible appellate review, warrants this Court to act with extreme
caution to avoid any appearance of impropriety or appearance of
a conflict of interest. The Court noted this exercise of caution is
to protect both the rights of the State and the defendant. The
Court further finds that substitution of counsel at this stage of the
proceedings produces no injury to Mr. Perkins’s defense.”
[(Doc. 10, Vol. 1 at 71-72.)]
Perkins, 808 So. 2d at 1059-60. The Court of Criminal Appeals held:
Fields’s testimony at the hearing on the State’s motion to recuse
revealed that he was involved in the investigation of Mrs. Gilliam’s
murder in a supervisory capacity and that he was privy to sensitive
information concerning the case. In addition, Fields was a potential
witness for the State based on his involvement in the processing of the
gray pickup truck. This created not only an “appearance of impropriety,”
as the trial court stated, but a real potential for conflict. Contrary to
Perkins’s contention, merely because this potential conflict did not
burgeon into an actual conflict of interest (Fields was, in fact, not called
as a witness for the State), does not lessen the duty of the trial court to
exercise caution, especially in a case where the most severe of all
penalties might be imposed.
Id. at 1060. The court found “a clear potential for conflict in this case,” for the PDO
and the State based on “Fields’s employment with the office representing Perkins,
after his involvement in the investigation of Mrs. Gilliam’s death, combined with the
possibility that he may have been called as a witness for the State at Perkins’s trial.”
Id. at 1061. Therefore, it found “no abuse of discretion on the part of the trial court
47
in exercising its own scrutiny to ensure a fair trial to both sides in a case” by
disqualifying the [PDO], id. and “no abuse of discretion in the trial court’s rejection
of Perkins’s offer to waive the potential conflict,” id.
Perkins contends that “[t]he state court’s decision [affirming the trial court’s
disqualification of the PDO] is contrary to or involves an unreasonable application
of clearly established federal law, 28 U.S.C. § 2254(d)(1), and is based on an
unreasonable determination of the facts in light of the evidence in the record, 28
U.S.C. § 2254(d)(2).” (Doc. 1 ¶ 81.) Specifically he contends that the decision of the
Court of Criminal Appeals, which was based on a finding of a clear potential for
conflict rather than a serious potential for conflict, is contrary to Supreme Court
precedent. (Doc. 1 ¶¶ 84-85 [citing, inter alia, Wheat, 486 U.S. at 162-64](emphasis
added).) He contends that the Alabama court’s decision represents an unreasonable
application of Supreme Court precedent because the risk that the public defender
“would have been prevented from doing anything if Fields had been called to testify
for the State,” which Perkins describes as the “touchstone of a conflict,” is
nonexistent. (Id. ¶ 86 [citing, inter alia, Holloway v. Arkansas, 435 U.S. 475, 489-90
(1978)].) And, Perkins contends, the Alabama court’s decision, that a potential
conflict of interest existed, “was based on an objectively unreasonable determination
of the facts,” because “[t]he record clearly establishes that Fields’s only relationship
48
to the [investigation of his] case was supervising the processing of a truck.” (Id. ¶
87.)
Generally, Supreme Court precedent establishes that –
the Sixth Amendment grants a defendant “a fair opportunity to secure
counsel of his own choice.” Powell [v. Alabama], [287 U.S. 45,] 53
[(1932)], 53 S. Ct. 55; see [United States v.] Gonzalez-Lopez, [548 U.S.
140,] 150, 126 S. Ct. 2557 (describing “these myriad aspects of
representation”). This “fair opportunity” for the defendant to secure
counsel of choice has limits. A defendant has no right, for example, to
an attorney who is not a member of the bar, or who has a conflict of
interest due to a relationship with an opposing party. See Wheat v.
United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140
(1988). And an indigent defendant, while entitled to adequate
representation, has no right to have the Government pay for his
preferred representational choice. See Caplin & Drysdale[, Chartered
v. United States], 491 U.S. [617,] 624, 109 S. Ct. 2646 [(1989)].
Luis v. United States, 136 S. Ct. 1083, 1089 (2016). “The [trial court] must recognize
a presumption in favor of petitioner’s counsel of choice, but that presumption may be
overcome not only by a demonstration of actual conflict but by a showing of a serious
potential for conflict. The evaluation of the facts and circumstances of each case
under this standard must be left primarily to the informed judgment of the trial court.”
Wheat, 486 U.S. at 164.
Supreme Court precedents do not clearly establish a constitutional right to
continued representation of appointed attorneys, see United States v. Parker, 469 F.3d
57, 61 (2d Cir. 2006)(Sotomayor, J.), or continued representation when a potential
49
conflict arises because of a side-switching, non-attorney employee without a waiver
of the conflict by both sides.10 Although Fields may have performed limited hands-on
work on the investigation of Mrs. Gilliam’s murder, he was present as a supervisor
during the processing of an important piece of evidence, the truck; he was privy to
sensitive information regarding the investigation and other investigations by virtue
of his position as second in command;11 and the record contains no indication that any
10
See Ala. Ethics Op. No. 2002-01 (2002) (a non-attorney employee who
changes firms must be held to the same standards as a lawyer in determining whether
a conflict of interest exists); see also Williams v. Trans World Airlines, Inc., 588 F.
Supp. 1037, 1044 (W.D. Mo. 1984)(“Non-lawyer personnel are widely used by
lawyers to assist in rendering legal services. Paralegals, investigators, and secretaries
must have ready access to client confidences in order to assist their attorney
employers. If information provided by a client in confidence to an attorney for the
purpose of obtaining legal advice could be used against the client because a member
of the attorney’s non-lawyer support staff left the attorney’s employment, it would
have a devastating effect both on the free flow of information between client and
attorney and on the cost and quality of the legal services rendered by an attorney.
Every departing secretary, investigator, or paralegal would be free to impart
confidential information to the opposition without effective restraint. The only
practical way to assure that this will not happen and to preserve public trust in the
scrupulous administration of justice is to subject these ‘agents’ of lawyers to the same
disability lawyers have when they leave legal employment with confidential
information.”).
11
During the hearing before the trial court, Fields testified as follows to
questioning by the prosecutor:
Q . . . Now during August of 1990 involving this and other cases,
would it be fair to say that you had privilege to sensitive information
about this investigation and other investigations?
50
effort was made to isolate Fields from the PDO’s representation of Perkins or to
maintain the confidential information possessed by Fields. Under the particular facts
of this case12 and in light of the lack of controlling Supreme Court precedent
A Yes, sir.
Q And were you [privy] to certain sensitive information
concerning this specific investigation –
A I would say, yes.
...
Q And now in this specific case, you have directed investigators
to some extent; is that correct?
A To some extent, yes.
Q And in this specific case, you have discussed the case [with the
prosecutors]; is that fair to say?
A I don’t recall. I could have.
Q . . . It would not have been uncommon for you in your
supervisory role to have a conversation with the District Attorney’s
Office in investigating –
A It would not be uncommon.
(Doc. 10, Vol. 2, Tab 5 at 10-11.)
12
The court has considered “the testimony and evidence presented to the [trial]
judge at the time of the hearing concerning the conflict of interests.” United States
v. Alred, 144 F.3d 1405, 1412 (11th Cir. 1998)(emphasis added).
51
addressing a similar fact situation, the court finds that deference to the decision of the
Alabama Court of Criminal Appeals is warranted.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has the burden under 28 U.S.C. § 2254(e)(1) to rebut
the state court’s factual determinations as to this issue with clear and convincing
evidence. He has failed to demonstrate that the state court’s rejection of this claim
relied on erroneous facts, or applied law contrary to established United States
Supreme Court precedent or in a manner that was objectively unreasonable in light
of such precedent. Given these considerations, this court cannot conclude that the
Alabama Court of Criminal Appeals unreasonably applied, or reached a decision
contrary to, clearly established federal law. Therefore, Perkins is not entitled to
habeas relief on this ground.
C. FAILURE TO GRANT A CHANGE OF VENUE
Perkins alleges that “[t]he state trial court violated [his] right to an impartial
jury by forcing him to be tried in a community that had been saturated with publicity
and [that] feared [him].” (Doc. 1 ¶ 91.) According to Perkins, “75 percent of
veniremembers admitted to having been exposed to substantial pretrial publicity
about the crime [and] [s]even members of [his] jury admitted to being exposed to
52
pretrial publicity by radio, television, newspapers, or word of mouth.” (Id. ¶ 99.) He
contends, “The publicity had three interconnected aspects that constitute a departure
from ordinary, objective news coverage,” (id. ¶ 93):
“First, much of the publicity reflected or provoked the
community’s particularized fear of being harmed by Perkins in their
homes; members of the community were depicted as victims of
terrorism.” (Id. ¶ 94.)
“Second, the publicity linked Perkins to broader issues of public
policy, politicizing his case. Perkins was on parole at the time of the
alleged crimes, and people blamed the Alabama Board of Pardons and
Paroles for failing to protect the public.” (Id. ¶ 96.)
“Third, the coverage encouraged readers victimized by fear of
Perkins to identify with Cathy Gilliam and her surviving husband and
children. The narrative — which mirrored the prosecution’s trial theme
— was that Perkins was a rapist and Cathy Gilliam died to protect her
daughter and to avoid being raped.” (Id. ¶ 97.)
“This combination of factors created a risk that jurors would view their role as
empowered victims taking the protection of their community into their own hands
instead of serving their constitutionally mandated role as skeptical buffer between
Perkins and the power of the government to imprison and execute him.” (Id. ¶ 106.)
In his Petition, Perkins argues that the state court erred in failing to examine
the totality of the circumstances to find “implied juror bias.” (Id. ¶ 105). He
contends that the state-court decision is “contrary to or an unreasonable application
of clearly established federal law because the court failed to determine whether jurors
53
were impliedly biased based on the ‘totality of circumstances,’ [and] [i]nstead, . . .
based its finding that jurors were not impliedly biased solely on ‘the media materials
presented to the trial court.’” (Id. ¶ 108 [citing Murphy, 421 U.S. at 799; quoting
Perkins, 808 So. 2d at 1069].) He alleges (1) “the state court examined the transcript
of voir dire only to determine whether jurors were actually biased in fact, not to
determine whether a presumption of prejudice arose based on the totality of the
circumstances,” and (2) “the state court completely failed to consider as part of the
totality of the circumstances the statements of public officials about the crime, the
victimization of the community, the emotional narrative of the prosecution’s case,
or the extensive and inherently prejudicial collateral-act evidence that the prosecution
put before the jury, much of it keyed to media reports.” (Id.) Also, “Assuming that
the state court properly considered the totality of the circumstances,” Perkins
contends that “its conclusion that there was no implied bias[,] and thus no presumed
prejudice[,] . . . involve[s] an unreasonable application of clearly established federal
law.” (Id. [citing, inter alia, Abdul-Kabir v. Quarterman, 550 U.S. 233, 258
(2007)].) Finally, he argues, “The state court decision [that the media coverage was
relatively objective is] an unreasonable determination of the facts in light of the
evidence in the record,” because (1) “[m]ost of the articles adopted the perspective
of actual victims, . . . potential victims, . . . and law enforcement officers,” and (2)
54
an article published the day before trial “described the community’s steadfast belief
that Perkins was guilty, its refusal to forgive, and its overwhelming support for
sentencing him to death.” (Id. ¶ 109.)
On direct appeal, the Alabama Court of Criminal Appeals held:
We acknowledge that Perkins’s case received extensive publicity
in Tuscaloosa County. However, “‘in order to obtain a change of venue,
it must be shown that pre-trial publicity surrounding the case was
inherently prejudicial.’” Oryang [v. State], [642 So. 2d 979] 983 [(Ala.
Crim. App. 1993)], quoting Holladay v. State, 549 So. 2d 122, 125 (Ala.
Cr. App. 1988), aff’d, 549 So. 2d 135 (Ala.), cert. denied, 493 U.S.
1012, 110 S. Ct. 575, 107 L. Ed. 2d 569 (1989). We recognize that the
“presumptive prejudice” standard is “‘rarely’ applicable, and is reserved
for only ‘extreme situations.’” Hunt [v. State], 642 So. 2d [999,] 1043
[(Ala. Crim. App. 1993)], quoting Coleman v. Kemp, 778 F.2d 1487,
1537 (11th Cir. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2289, 90
L. Ed. 2d 730 (1986). We also recognize that Perkins’s burden – to
show that pretrial publicity so saturated the community as to deny him
a fair trial – is a very heavy burden. See Hunt, supra at 1043.
“‘Prejudicial’ publicity usually must consist of much more than stating
the charge and reporting on the pretrial and trial processes. ‘Publicity’
and ‘prejudice’ are not the same thing. Excess publicity does not
automatically or necessarily mean that the publicity was prejudicial.”
[Id.]
We do not find that the pretrial publicity in this case so
“pervasively saturated” the community as to render the court
proceedings nothing more than a “hollow formality.” Oryang, supra, at
983. Nor do we find that the publicity was so inherently prejudicial as
to create a presumption of prejudice. To justify a change of venue, the
publicity must be both extensive and sensational in nature. “If the media
coverage is factual as opposed to inflammatory or sensational, this
undermines any claim for a presumption of prejudice.” United States v.
Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied, 498 U.S. 845, 111
55
S. Ct. 130, 112 L. Ed. 2d 98 (1990). We have examined the media
materials presented to the trial court, and we find that most of the reports
were factual and relatively objective rather than accusatory,
inflammatory, or sensational. Perkins has failed to prove that the media
reports so inflamed or saturated the community as to create an emotional
tide against him. Thus, he has not shown that the pretrial publicity in
this case was so inherently or presumptively prejudicial as to constitute
one of those “extreme situations” that warrant a presumption of
prejudice.
In addition, we find no evidence of bias on the part of prospective
jurors so pervasive as to indicate actual prejudice. On appeal, Perkins
offers us nothing more than the assertion that the majority of the
prospective jurors on the venire had heard about the case and that 25 of
the 88 prospective jurors had been excused for cause based on their
exposure to pretrial publicity. However, as the Alabama Supreme Court
stated in Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S.
865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985):
[“As the Supreme Court explained in Irvin v. Dowd, 366
U.S. 717, 723, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751
(1961):]
“‘To hold that the mere existence of any
preconceived notion as to the guilt or innocence of
an accused, without more, is sufficient to rebut the
presumption of a prospective juror’s impartiality
would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence
presented in court. . . .’
“The standard of fairness does not require jurors to
be totally ignorant of the facts and issues involved.
Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031,
2035-2036, 44 L. Ed. 2d 589 (1975). Thus, ‘[t]he proper
manner for ascertaining whether adverse publicity may
56
have biased the prospective jurors is through the voir dire
examination.’ Anderson v. State, 362 So. 2d 1296, 1299
(Ala. Crim. App. 1978).”
479 So. 2d at 80. “ ‘ “The relevant question is not whether the
community remembered the case, but whether the jurors at [the
accused’s] trial had such fixed opinions that they could not judge
impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025,
1035, 104 S. Ct. 2885, 2891, 81 L. Ed. 2d 847 (1984).’ ” Siebert v.
State, 562 So. 2d 586, 589 (Ala. Cr. App. 1989), aff’d, 562 So. 2d 600
(Ala.), cert. denied, 498 U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 408
(1990), quoting Fortenberry v. State, 545 So. 2d 129 (Ala. Cr. App.
1988), aff’d, 545 So. 2d 145 (Ala. 1989), cert. denied, 495 U.S. 911, 110
S. Ct. 1937, 109 L. Ed. 2d 300 (1990). The jury venire in this case was
extensively and thoroughly examined in an individual, sequestered
setting regarding each prospective juror’s knowledge about the case.
While the majority of prospective jurors were aware of the abduction
and murder of Mrs. Gilliam, and of the manhunt by law enforcement
officials to capture Perkins following the murder, opinions of less than
one-third (25 of 88) of the venire were actually tainted by pretrial
publicity. See Russell v. State, 739 So. 2d 58 (Ala. Cr. App. 1999).
Perkins has failed to show either that the community was
saturated with pretrial publicity or that actual prejudice existed among
the jurors at his trial. The media coverage was not so sensational and
inflammatory as to create a presumption of prejudice. The record
contains no indication that any juror who sat on Perkins’s jury had a
fixed opinion of Perkins’s guilt or that the verdict was not impartially
rendered on the evidence presented at trial. Accordingly, we find that
the trial court did not abuse its discretion in denying Perkins’s motion
for a change of venue.
Perkins, 808 So. 2d 1068-70.
57
In his Petition, Perkins challenges the state court’s finding regarding a
presumption of prejudice; he does not challenge the court finding that his jury was
not actually prejudiced by pretrial publicity. Generally –
[The Supreme] Court has established that a refusal to grant a
motion for change of venue may constitute a violation of due process.
See Groppi v. Wisconsin, 400 U.S. 505, 91 S. Ct. 490, 27 L. Ed. 2d 571
(1971); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d
663 (1963); Irvin v. Dowd, [366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6
L. Ed. 2d 751 (1961)]. A defendant seeking to establish such a violation
must demonstrate either that his trial resulted in “identifiable prejudice”
or that it gave rise to a presumption of prejudice because it involved
“such a probability that prejudice will result that it is deemed inherently
lacking in due process.” Estes v. Texas, 381 U.S. 532, 542-543, 85 S.
Ct. 1628, 1632-1633, 14 L. Ed. 2d 543 (1965). In deciding whether
such a presumption of prejudice is warranted, courts must examine “any
indications in the totality of circumstances that petitioner’s trial was not
fundamentally fair.” Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct.
2031, 2036, 44 L. Ed. 2d 589 (1975).
Brecheen v. Oklahoma, 485 U.S. 909, 910 (1988)(Marshall, J., dissenting from denial
of cert.)(emphasis added).
“A presumption of prejudice, [Supreme Court] decisions indicate, attends only
the extreme case.” Skilling v. United States, 561 U.S. 358, 379-81 (2010)(citing, inter
alia, Sheppard v. Maxwell, 384 U.S. 333, 354-55, 358 (1966), Estes, 381 U.S. at
536-38, Rideau, 373 U.S. at 725-27); see also Mills v. Singletary, 63 F.3d 999, 1010
(11th Cir. 1995)(“[T]he principle of presumed prejudice is rarely applicable and
reserved for extreme situations.”)(internal quotations and citations omitted).
58
“[P]retrial publicity even pervasive, adverse publicity does not inevitably lead to an
unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976), quoted in
Skilling, 561 U.S. at 384. And, “A high level of publicity is not necessarily
inconsistent with the ability of the defendant to obtain a fair trial where the publicity
has been largely factual in nature or where it abated some time prior to trial.”
Gannett Co. v. DePasquale, 443 U.S. 368, 443 (1979)(Blackmun, J., concurring in
part and dissenting in part)(citing Murphy, 421 U.S. at 802; Beck v. Washington, 369
U.S. 541, 542-45, 557-58 (1962); Stroble v. California, 343 U.S. 181, 191-94
(1952))(internal citations omitted; emphasis added). “[T]he Supreme Court has ruled
that we cannot presume prejudice in the absence of a ‘trial atmosphere . . . utterly
corrupted by press coverage.’” United States v. Campa, 459 F.3d 1121, 1144 and
n.198 (11th Cir. 2006)(quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)(quoting
Murphy, 421 U.S. at 798)). “[T]he ‘quantum’ of the publicity does not, standing
alone, create a presumption that a defendant was denied a fair trial by an impartial
jury. . . . [T]he nature of the publicity and whether it is the sort that could be laid
aside by jurors, rather than its volume, is the crucial factor to be considered.” Davis
v. Jones, 441 F. Supp. 2d 1138, 1167-68 (M.D. Ala. 2006)(internal citations and
quotations omitted), aff’d, 506 F.3d 1325 (11th Cir. 2007).
59
Although the nature of the murder, the character and criminal history of
Perkins, and the subsequent manhunt received a great deal of media coverage in
August 1990, nothing in the record indicates that media coverage created “bedlam”
or a “carnival atmosphere” at the time of the trial in April 1994. See Skilling, 561
U.S. at 380 (quoting Sheppard v. Maxwell, 384 U.S. 333, 355 (1966)).13 The articles
are primarily factual, focused on the kidnaping and murder of Mrs. Gilliam, Perkins’s
criminal history, the ensuing manhunt, and the sentiment in the community during
August 1990. Media coverage after this time was limited and each member of the
venire was questioned about their exposure to news coverage.
In addition to the volume and the content of the media coverage, another factor
the court must consider in the totality of the circumstances is the timing of the adverse
13
The Supreme Court noted:
[I]n Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed.
2d 600 (1966), news reporters extensively covered the story of Sam
Sheppard, who was accused of bludgeoning his pregnant wife to death.
“[B]edlam reigned at the courthouse during the trial and newsmen took
over practically the entire courtroom,” thrusting jurors “into the role of
celebrities.” Id., at 353, 355, 86 S. Ct. 1507. Pretrial media coverage,
which we characterized as “months [of] virulent publicity about
Sheppard and the murder,” did not alone deny due process, we noted.
Id., at 354, 86 S. Ct. 1507. But Sheppard’s case involved more than
heated reporting pretrial: We upset the murder conviction because a
“carnival atmosphere” pervaded the trial, id., at 358, 86 S. Ct. 1507.
Skilling, 561 U.S. at 380.
60
pretrial publicity. In this case, the majority of the media stories included in the record
occurred at the time of the crime and the subsequent manhunt in August 1990. Two
articles were published in the Tuscaloosa newspaper the Sunday before jury selection
began in April 1994 – “a time when prejudicial publicity was greatly diminished . .
. .” See Patton v. Yount, 467 U.S. 1025, 1032 (1984); see also Skilling, 561 U.S. at
383 (noting “the decibel level of media attention diminished somewhat in the [four]
years” between Enron’s bankruptcy and Skilling’s trial). “That time soothes and
eases [public sentiment] is a perfectly natural phenomenon, familiar to all.” Patton,
467 U.S. at 1034-35. These articles and word-of-mouth discussions occurring at or
near the time of jury selection do not reveal a “barrage of inflammatory publicity
immediately prior to trial, amounting to a huge . . . wave of public passion.” Id. at
1033 (internal citations and quotations omitted). “[T]he passage of time . . . can be
a highly relevant fact. In the circumstances of this case, . . . it clearly rebuts any
presumption of partiality or prejudice that [may have] existed at the time of [the crime
and the subsequent manhunt].” See id. at 1035.
Another factor the court should consider is “the credibility of prospective jurors
who indicate during voir dire that they could be impartial despite having been
exposed to pretrial publicity about the case.” United States v. Lehder-Rivas, 955 F.2d
1510, 1524 (11th Cir. 1992). This court has considered the extensive voir dire in this
61
case and finds that the majority of prospective jurors had not closely followed the
media coverage of this case. And, the twelve jurors and two alternates selected to
serve on the jury appear to have “credibly asserted that they could remain impartial.”
Id. at 1525. No evidence from these venire members indicates otherwise.
Therefore, the court finds “the totality of the circumstances provides no basis
for concluding that ‘the community was . . . so inflamed and biased [ ] as to create a
presumption of prejudice that a fair and impartial jury panel could not be
impaneled.’” Id. (quoting United States v. De La Vega, 913 F.2d 861, 865 (1990)).
The court finds no error in the state court’s judgment that the majority of the articles
were objective. “[E]xtensive knowledge in the community of either the crimes or the
putative criminal is not sufficient by itself to render a trial constitutionally unfair.”
Dobbert, 432 U.S. at 303. Moreover, the opinions and feelings of crime victims and
community members are “facts” and articles reporting such facts are objective reports
– unlike editorials or opinion pieces.
Based on the circumstances of this case, including the entire record of the voir
dire of the venire, the newspaper articles submitted with the appeal record, and the
transcripts of the hearings on Perkins’s motion for change of venue, the court finds
Perkins has not demonstrated that the decision of the Alabama Court of Criminal
62
Appeals was contrary to or an unreasonable application of Supreme Court precedent
or that its decision was an unreasonable determination of the facts.
For all the foregoing reasons, this claim is without merit and is due to be
denied.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A
FAIR TRIAL AND RELIABLE SENTENCE
Perkins contends that his “Fourteenth Amendment right to a fair trial and
Eighth Amendment right to a reliable determination of sentence” were violated by the
trial court’s admission of collateral-act evidence of two rapes, which occurred in the
two weeks before he killed Mrs. Gilliam; the facts surrounding the incident at Darlene
63
Hall’s house, the theft of the gray truck, which contained the murder weapon, and the
trial court’s sua sponte failure to give a limiting instruction. (Doc. 1 ¶ 111.) He
alleges:
112. In order to find Roy Perkins guilty of capital murder, the
jury had to find that Perkins intended to physically injure or sexually
abuse Cathy Gilliam at the time of the abduction. The most direct
evidence suggesting that Perkins specifically intended to rape Cathy
Gilliam came through testimony of her daughter Candace, who testified
by stipulation that Cathy Gilliam yelled the word “rapist” as she was
being led away from her home. [(Doc. 10, Vol. 11, Tab 19 at 1755.)]
However, the prosecution lacked any physical evidence of a sexual
assault, and both Cathy Gilliam, [(id., Vol. 12 at 2029)], and the medical
examiner who performed Gilliam’s autopsy, [(id., Vol. 13 at 2153)],
stated that Gilliam had not been raped.
113. To bolster its claim that Perkins specifically intended to rape
and kill Cathy Gilliam, the prosecution argued that it was entitled to
present collateral-act evidence showing that Perkins had abducted and
raped two other women in the weeks before the abduction of Cathy
Gilliam. [(See, e.g., id., Vol. 11, Tab 16 at 1705, 1709.)] Defense
counsel argued that the collateral-act evidence was inadmissible because
(1) the probative value of the evidence was low in light of substantial
differences between the other crimes and the crime involving Cathy
Gilliam, [(see, e.g., id. at 1700, 1708, 1710, 1715)], and (2) the
prejudicial effect of the evidence substantially outweighed the probative
value of the other crimes, [(see, e.g., id. at 1714)], particularly in light
of the extensive pretrial media coverage depicting Perkins as a rapist,
[(id. at 1706-07)]. Defense counsel moved repeatedly to limit admission
of the collateral-act evidence, [(see, e.g., id., Vol. 1 at 177-78; id., Vol.
11, Tab 16 at 1696; id., Vol. 15 at 2500)], but their motions were
repeatedly denied by the trial court, [(see, e.g., id., Vol. 1 at 191; id.,
Vol. 11, Tab 17 at 1715; id., Vol. 15 at 2508)]. As a result, half of the
prosecution’s 39 witnesses testified about Perkins’s other alleged crimes
64
or acts. The testimony and physical evidence about the collateral acts,
particularly two alleged rapes, pervaded the trial.
114. The admission of collateral-act evidence to prove a disputed
issue does not necessarily render a trial fundamentally unfair. See
Estelle v. McGuire, 502 U.S. 62, 67-70 (1991). Intent was a disputed
issue at Perkins’s trial because there was no evidence that Cathy Gilliam
had been sexually abused.14 Most of the collateral-act evidence was
admitted to address that issue; the prosecution’s theory was that because
Perkins had raped two other women he had abducted, he must have
intended to rape Cathy Gilliam. (See, e.g., doc. 10, Vol. 11, Tab 16 at
1705.)] However, the evidence actually presented went far beyond
serving that narrow purpose, frequently involving graphic testimony
irrelevant to the question of intent.
14
Perkins’s intent was not disputed simply because the evidence showed that
Mrs. Gilliam had not been sexually abused. Perkins argued that he did not intend to
harm Mrs. Gilliam at all and that her shooting had been an accident. He also relied
on evidence that he had taken Mrs. Gilliam for help after he shot her as evidence he
did not intend her harm. Nevertheless, regardless of the evidence, or lack thereof, in
support of his intent not to harm Mrs. Gilliam, Perkins, by pleading “not guilty” to
the crimes requiring proof of a specific intent, “put[ ] the prosecution to its proof as
to all elements of the crime charged,” including intent. See Mathews v. United States,
485 U.S. 58, 65 (1988)(citing, inter alia, Fed. R. Crim. P. 11).
Once criminal defendants enter pleas of not guilty, the Fifth and
Sixth Amendments to the Constitution entitle them to at least two
trial-related rights. First, the Constitution gives a criminal defendant the
right to demand that a jury find him guilty of all the elements of the
crime with which he is charged. Second, the simple plea of not guilty
puts the prosecution to its proof as to all elements of the crime charged.
United States v. Hardin, 139 F.3d 813, 815 (11th Cir. 1998)(quoting United States
v. Gaudin, 515 U.S. 506, 511 (1995); and Estelle v. McGuire, 502 U.S. 62, 69-70
(1991))(internal quotations and citation omitted).
65
115. The collateral-act evidence is summarized in 12 reported
pages of the opinion of the Alabama Court of Criminal Appeals.
Perkins v. State, 808 So. 2d 1041, 1080-92 (Ala. Crim. App. 1999). It
included needlessly lurid testimony from alleged victims [D.W.] and
[B.P.], much of it calculated to make Perkins appear repulsive. [(See,
e.g., doc. 10, Vol. 12 at 1862-1911.)] There was also irrelevant
testimony about the practices involved in post-rape medical
examinations. Various personnel affiliated with law enforcement
agencies testified about investigating the rapes and securing rape
evidence. From the Alabama Department of Forensic Science, a
serologist testified about performing DNA type matching on samples
in the rape kits, [(id., Vol. 14 at 2247-69, 2289-2301)], while a
trace-evidence examiner testified about collecting hair and fiber samples
from rape kits, [(id. at 2301-08)].
116. In addition to the rape evidence, the prosecution presented
other collateral-act evidence. Darlene Hall described an episode
involving a man she identified as Perkins attempting to use her
telephone shortly before Cathy Gilliam was abducted, [(id., Vol. 11, Tab
19 at 1756-81)], supplemented by testimony of law enforcement
personnel. [(See, e.g., id., Vol. 12 at 1978-84.)] And further statements
and testimony suggested that Perkins was a thief. [(Id., Vol. 11, Tab 17
at 1727-28; id., Vol. 13 at 2061.)]
117. The prosecution argued from the collateral act evidence at
length during the guilt phase. In spite of the defense’s repeatedly
expressed concerns about the effects that the collateral-act evidence
would have on jurors’ ability to rationally consider the evidence, the
prosecution exploited that evidence not to establish intent, but to vilify
Perkins based on immaterial and occasionally fraudulent details. The
prosecution argued that Perkins “sexually assaulted [D.W.] in almost
every orifice she had.” (Id., Vol. 15, Tab 21 at 2628.)] It said,
impersonating Perkins, “Gee, whitakers, [D.W.], after it’s all over with,
I’ve assaulted you in every orifice, just about other than your nose and
your ear, but I didn’t mean to do it, please forgive me.” [(Id. at 2630.)]
It emphasized that Perkins had allegedly sexually assaulted “his own
66
cousin.”15 [(Id. at 2629.)] It argued that “we know” that Perkins treated
women “like sex slaves.” [(Id., Vol. 16, Tab 23 at 2667.)] And it
characterized Perkins’s encounter with Darlene Hall as a “date attempt”
that he “struck out on,” arguing that Hall was a third intended rape
victim. [(Id., Vol. 15, Tab 21 at 2629.)]16
118. The collateral-act evidence and inflammatory arguments
made by the prosecution compounded the effects of prejudicial
information that had already saturated the community and reached most
jurors. Perkins had been reviled as a rapist in the local media, [(id., Vol.
24, Tab 43 at 52-93)]; even the Governor of Alabama had decried him
as a rapist, [(id., Vol. 4 at 238)], and there had been death threats against
him and his counsel, [(id. at 238-39)].
119. Though it knew that the collateral-act evidence had
pervaded the proceedings as well as the greater community, the trial
court gave no limiting instruction prior to the jury’s guilt phase
deliberations concerning how the jury should use the collateral-act
evidence.
120. After Perkins was convicted, a penalty-phase trial was held
before the jury. The prosecution incorporated all of the previous
collateral-act evidence into the penalty phase. [(Id., Vol. 17, Tab 28 at
15
B.P. is Perkins’s cousin.
16
The court notes that it considers the prosecutor’s arguments to be improper
and would have sustained any objection at trial. However, the issue for this court is
not whether it agrees with the Alabama courts’ decisions on Perkins’s issues. “The
question under AEDPA [the Antiterrorism and Effective Death Penalty Act] is not
whether a federal court believes the state court's determination was incorrect but
whether that determination was unreasonable – a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “The state court decision must be so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Woods v.
Etherton, 136 S. Ct. 1149, 1151 (2016)(internal citations and quotations omitted).
67
2776.)] As during the prior phase, the trial court gave no instruction
limiting what inferences the jury could draw from the evidence.
...
135. Evidence of a criminal defendant’s bad character has
traditionally been held inadmissible because it may “weigh too much
with the jury” and “so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a
particular charge.” Michelson v. United States, 335 U.S. 469, 476
(1948). The risk of harm attendant to character evidence is even greater
where the prosecution makes “pronounced and persistent” improper
arguments that call attention to the most prejudicial details. Cf. Berger
v. United States, 295 U.S. 78, 89 (1935) (“[A prosecutor’s] improper
suggestions, insinuations, and, especially, assertions of personal
knowledge are apt to carry much weight against the accused when they
should properly carry none.”). And the risk of harm is at its height
where a trial court fails to give a cautionary instruction. Cf. Caldwell v.
Mississippi, 472 U.S. 320, 338-39 (1985) (holding prosecutor’s
improper argument unconstitutional where trial court “failed to correct
the prosecutor’s remarks”).
136. Here, the prosecution’s case against Perkins was weak in
several respects. At the guilt phase, the principal evidence supporting
the intent elements – intent to rape and intent to kill – was that Cathy
Gilliam had yelled “rapist,” that Perkins had allegedly raped two
women, and that Perkins had stipulated that he caused Gilliam’s death.
Yet substantial evidence showed that Perkins intended neither to rape
nor to kill Gilliam, including the statements of the victim, the actions of
Perkins following the shooting, and the changed circumstances between
the time of the collateral rapes and the time of the abduction of Gilliam.
By portraying Perkins as a bad person, the prosecution encouraged the
jury to convict him of capital murder based on irrational reactions
instead of the quality or strength of the evidence. At the penalty phase,
the prosecution relied on all of the guilt phase evidence, and argued that
it was Perkins’s “behavior we’re looking at,” [(doc. 10, Vol. 18, Tab 34
68
at 2979)], and that Perkins had “no concept of human decency,” [(id.,
Vol. 18 at 2967)].
137. By needlessly presenting the jury with a host of bad conduct
allegedly committed by Perkins, and then intensifying the details in their
arguments, the prosecution invited jurors to convict Perkins and
sentence him to death based on distaste for the State’s portrayal of who
Perkins was rather than a rational response to the relevant evidence
about the crime and Perkins’s degree of culpability. See Ege v. Yukins,
485 F.3d 364, 377 (6th Cir. 2007)(“If the prosecution felt that the
[prejudicial] evidence was so important, it does not take much of a
cognitive leap to believe that the jury viewed it as important as well.”).
Without a limiting instruction from the trial court to guide the jury’s
response to the prosecution’s evidence and arguments, the violation of
Perkins’s Eighth and Fourteenth Amendment rights had a substantial
and injurious influence on the jury’s verdict. Therefore, Perkins is
entitled to relief.
(Doc. 1 ¶¶ 112-20; 135-37 [footnotes added].)
1. Overlooked Claims or Presumed Ruling on the Merits
Perkins contends that the Alabama Court of Criminal Appeals “failed to
address [his] claim[s] that the unlimited admission of the [collateral-act] evidence”
violated his right to due process under the Fourteenth Amendment and his right to a
reliable sentence under the Eighth Amendment. (Id. ¶ 122.) Therefore, this court
“should review [his] claim[s] de novo because [they were] overlooked by the
Alabama Court of Criminal Appeals.” (Id. ¶ 123.)
With regard to his claim that collateral-acts evidence was improperly admitted,
the Alabama Court of Criminal Appeals held that admission of this evidence was not
69
error – “plain or otherwise,” and it defined “plain error” as “error that is so obvious
that the failure to notice it would seriously affect the fairness or integrity of the
judicial proceedings.” Perkins, 808 So. 2d at 1084-85, 1088, 1092, 1093 (quoting Ex
parte Trawick, 698 So. 2d 162, 167 (Ala. 1997)). The Alabama Supreme Court has
noted that “a review under the plain error rule, which guarantees a defendant a
fundamental right to fairness, is tantamount to a due process review.” Pace v. State,
714 So. 2d 332, 337 (Ala. 1997)(quoting Ex parte Myers, 699 So. 2d 1285, 1296-98
n.4 (Ala. 1997)); see also Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir.
2005)(“We see no practical distinction between the formulations of plain error in
Thornburg [v. State, 985 P.2d 1234, 1242 (Okla. Crim. App. 1999),] and Cleary [v.
State, 942 P.2d 736, 752-53 (Okla. Crim. App. 1997),] and the federal due-process
test, which requires reversal when error ‘so infused the trial with unfairness as to
deny due process of law,’ Estelle [v. McGuire], 502 U.S. [62,] 75 [(1991)]. Because
the [Oklahoma Court of Criminal Appeals] applied the same test we apply to
determine whether there has been a due-process violation, we must defer to its ruling
unless it ‘unreasonably appli[ed]’ that test. 28 U.S.C. § 2254(d).”).
Nevertheless, the court does not decide whether the Alabama court decided
Perkins’s federal constitutional claims on the merits by deciding that the evidentiary
70
rulings were not plain error, because it finds no error based on a de novo review of
these claims.
Even if the state court used an incorrect legal standard, [the court]
need not determine whether AEDPA’s deferential standard of review, 28
U.S.C. § 2254(d), applies in this situation. Cf. Williams v. Taylor, 529
U.S. 362, 397-398, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). That is
because, even if AEDPA deference does not apply, [petitioner] cannot
show prejudice under de novo review, the more favorable standard of
review for [petitioner]. Courts cannot grant writs of habeas corpus
under § 2254 by engaging only in de novo review when it is unclear
whether AEDPA deference applies, § 2254(d). In those situations,
courts must resolve whether AEDPA deference applies, because if it
does, a habeas petitioner may not be entitled to a writ of habeas corpus
under § 2254(d). Courts can, however, deny writs of habeas corpus
under § 2254 by engaging in de novo review when it is unclear whether
AEDPA deference applies, because a habeas petitioner will not be
entitled to a writ of habeas corpus if his or her claim is rejected on de
novo review, see § 2254(a).
Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
2. Admission of Evidence of Prior Acts and Perkins’s Right to Due
Process
Perkins claims
125. The United States Supreme Court has made clear that state
evidentiary rulings must be fundamentally fair to comport with the Due
Process Clause. See, e.g., Rochin v. California, 342 U.S. 165, 168-74
(1952). Accordingly, prosecution tactics to make the evidence against
a defendant appear more damaging than it actually is can render a trial
fundamentally unfair. See, e.g., Napue v. Illinois, 360 U.S. 264, 169
(1959)(“[I]t is established that a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall
under the Fourteenth Amendment.”); Townsend v. Burke, 334 U.S. 736,
71
740-41 (1948)(holding defendant was denied due process where he was
“sentenced on the basis of assumptions concerning his criminal record
which were materially untrue”); cf. Berger v. United States, 295 U.S. 78,
85 (1935)(reversing conviction where prosecutor’s remarks were
“calculated to mislead the jury”). See generally Wellons v. Hall, 558
U.S. 220, 220 (2010)(per curiam)(“From beginning to end, judicial
proceedings conducted for the purpose of deciding whether a defendant
shall be put to death must be conducted with dignity and respect.”).
126. Collateral-act evidence “is generally recognized to have
potentiality for prejudice” and “is usually excluded” except where the
“possibility of prejudice is believed to be outweighed by the validity of
the State’s purpose in permitting introduction of the evidence.” Spencer
v. Texas, 385 U.S. 554, 560-61 (1967). Where a state proves a
legitimate purpose for presenting collateral-act evidence, “defendants’
interests are protected by limiting instructions.” Id. at 561.
127. Though collateral-act evidence is often admissible for
limited purposes, a state violates a defendant’s rights where “erroneous
admission of evidence makes a petitioner’s trial ‘so fundamentally
unfair that the conviction was obtained in violation of the due process
clause of the fourteenth amendment.’” Herring v. Sec’y, Dep’t of Corr.,
397 F.3d 1338, 1355 n.8 (11th Cir. 2005)(quoting Thigpen v. Thigpen,
926 F.2d 1003, 1012 (11th Cir. 1991)); see also Dobbs v. Kemp, 790
F.2d 1499, 1504 (11th Cir. 1986)(recognizing state court evidentiary
rulings may render trial fundamentally unfair). Factors that courts
consider in determining whether admission of evidence renders a trial
fundamentally unfair include whether “the evidence is close,” the
“manner in which the complained of evidence was presented,” whether
“the evidence was highly persuasive,” whether the evidence “was used
in closing argument,” and “whether the defense was able to effectively
counter” the evidence. Maurer v. Dep’t of Corr., 32 F.3d 1286, 1289
(8th Cir. 1994). The ultimate question is whether the erroneous
admission of evidence robbed the trial of “the dignity due a rational
process.” See Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978).
72
128. Here, the pervasive testimony about collateral acts denied
Perkins’s right to due process of law because the “extraneous
considerations render[ed] improbable or impossible an impartial
judgment as to guilt.” See Menzies v. Procunier, 743 F.2d 281, 289 (5th
Cir. 1984). The permissible use for the two collateral rapes was to show
that they occurred, not how they occurred in ways different from the
crime at issue or how they were investigated. Therefore, the legitimate
purpose for admitting the collateral evidence did not require
emphasizing the details.
129. Nevertheless, the prosecution presented the rapes in
painstaking detail, scattering references to them throughout the trial and
emphasizing the most inflammatory aspects. The prosecution used the
irrelevant details throughout its opening statement and closing
arguments. The trial court did not even issue a limiting instruction.
130. In addition to the rape testimony, testimony about the
alleged encounter between Darlene Hall and Perkins, as well as
testimony suggesting that Perkins was a thief, heightened the risk that
jurors would find Perkins guilty because they thought he was a bad
person who needed to be punished, not because the relevant evidence
proved him guilty of capital murder beyond a reasonable doubt. “It is
clear that the cumulative effect of the conduct of the state was to arouse
prejudice” and that the jury was “inflamed by marginally relevant and
irrelevant evidence that was highly prejudicial.” Cf. Walker v. Engle,
703 F.2d 959, 968-69 (6th Cir. 1983). This fundamental unfairness
infected both the guilt phase and the penalty phase. Perkins’s conviction
and sentence should be vacated. See id. at 969 (“When a trial court
permits the constitutional protections to be overridden by zealous
prosecutors without interjecting restraining or curative measures, the
federal courts must be alert to act as the district court did here.”).
(Doc. 1 ¶¶ 125-30.)
“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court
73
is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(citing 28 U.S.C.
§ 2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975))(footnote omitted). “In our
system of justice, [a] fair trial for persons charged with criminal offenses is secured
by the Sixth Amendment, which guarantees to defendants the right to counsel,
compulsory process to obtain defense witnesses, and the opportunity to
cross-examine witnesses for the prosecution.” Perry v. New Hampshire, 565 U.S.
228, 231-32 (2012). “Those safeguards apart, admission of evidence in state trials
is ordinarily governed by state law, and the reliability of relevant testimony typically
falls within the province of the jury to determine.” Id. at 232 (emphasis added).
Therefore, only when the state court’s ruling with regard to the admission of evidence
is alleged to have deprived the petitioner of his right to due process will a federal
habeas court consider whether that error was of such magnitude that it denied
petitioner’s right to a fundamentally fair trial in violation of the due process clause.
See Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994)(citing, inter alia, Lisenba
v. California, 314 U.S. 219, 228 (1941)). “As applied to a criminal trial, denial of due
process is the failure to observe that fundamental fairness essential to the very
concept of justice. In order to declare a denial of it [the court] must find that the
absence of that fairness fatally infected the trial; the acts complained of must be of
74
such quality as necessarily prevents a fair trial.” Lisenba, 314 U.S. at 236-37
(emphasis added).
The right of an accused in a criminal trial to due process is, in essence,
the right to a fair opportunity to defend against the State’s accusations.
The rights to confront and cross-examine witnesses and to call witnesses
in one’s own behalf have long been recognized as essential to due
process. Mr. Justice Black, writing for the Court in In re Oliver, 333
U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682 (1948), identified these
rights as among the minimum essentials of a fair trial:
‘A person’s right to reasonable notice of a charge against
him, and an opportunity to be heard in his defense – a right
to his day in court – are basic in our system of
jurisprudence; and these rights include, as a minimum, a
right to examine the witnesses against him, to offer
testimony, and to be represented by counsel.’
Chambers v. Mississippi, 410 U.S. 284, 294 (1973). “But apart from trials conducted
in violation of express constitutional mandates, a constitutionally unfair trial takes
place only where the barriers and safeguards are so relaxed or forgotten that the
proceeding is more a spectacle or trial by ordeal than a disciplined contest.” United
States v. Augenblick, 393 U.S. 348, 356 (1969)(citing Rideau v. Louisiana, 373 U.S.
723, 726 (1963); and Brown v. Mississippi, 297 U.S. 278, 285 (1936))(internal
citations omitted).
75
Perkins claims that the admission of collateral-act evidence denied him due
process pursuant to the Fourteenth Amendment and a reliable sentence under the
Eighth Amendment. He argues:
131. Under the Eighth Amendment, relief is further warranted
due to the danger that Perkins’s sentence of death is unreliable. The
Eighth Amendment “gives rise to a special ‘need for reliability in the
determination that death is the appropriate punishment’ in any capital
case.” Johnson v. Mississippi, 486 U.S. 578, 584 (1988)(quoting
Gardner v. Florida, 430 U.S. 349, 393-64 (1977)). The United States
Supreme Court has repeatedly cautioned that “[c]apital punishment must
be limited to those offenders who commit ‘a narrow category of the most
serious crimes’ and whose extreme culpability makes them ‘the most
deserving of execution.’” Roper v. Simmons, 543 U.S. 551, 568 (2005)
(quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). Circumstances
that present an undue risk of unreliable or arbitrary imposition of the
death penalty — meaning death sentences for those who lack extreme
culpability — violate the Eighth Amendment’s proscription against
cruel and unusual punishment. See, e.g., id.
132. Admission of irrelevant, inflammatory evidence during the
penalty phase of a capital trial is a practice that presents an undue risk
of arbitrariness. Booth v. Maryland, 482 U.S. 496, 508-09 (1987),
overruled on other grounds by Payne v. Tennessee, 501 U.S. 808, 829
n.2 (1991).17 In Booth v. Maryland, a prosecutor presented evidence that
17
The decision in Payne v. Tennessee overruled the decision in Booth that
victim impact evidence was inadmissible during sentencing; it held:
[I]f the State chooses to permit the admission of victim impact evidence
and prosecutorial argument on that subject, the Eighth Amendment
erects no per se bar. A State may legitimately conclude that evidence
about the victim and about the impact of the murder on the victim’s
family is relevant to the jury’s decision as to whether or not the death
penalty should be imposed. There is no reason to treat such evidence
76
members of the victim’s family believed the crime was vicious and did
not think that the person who did it could be rehabilitated. Id. at 508.
The United States Supreme Court held that “admission of these
emotionally charged opinions as to what conclusions the jury should
draw from the evidence clearly is inconsistent with the reasoned
decisionmaking we require in capital cases.” Id. 508-09. The Supreme
Court explained that the evidence was impermissible because it could
“serve no other purpose than to inflame the jury and divert it from
deciding the case on the relevant evidence concerning the crime and the
defendant.” Id. at 508.
133. As in Booth, there is an intolerable risk here that Perkins
was sentenced to death without a rational finding that he was among
“the most deserving of execution.” Atkins, 536 U.S. at 319. Because it
misled jurors into believing that all of the collateral-act evidence was
relevant to punishment, the prosecution’s incorporation of the
inflammatory collateral-act evidence into the penalty phase violated the
principle that the capital sentencing process “should facilitate the
responsible and reliable exercise of sentencing discretion.” Caldwell v.
Mississippi, 472 U.S. 320, 329 (1985). Admission of prejudicial,
irrelevant evidence without adequate safeguards violates the Eighth
Amendment. See, e.g., Johnson, 486 U.S. at 590; Booth, 482 U.S. at
508; cf. Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (holding no Eighth
Amendment violation where jury was correctly instructed).
(Doc. 1 ¶¶ 131-33 [footnote added].)
differently than other relevant evidence is treated.
Payne v. Tennessee, 501 U.S. 808, 827 (1991). Any reading of Booth that the State
must limit certain types of relevant evidence in a capital case has thus been abrogated.
As Justice O’Connor wrote in her concurring opinion, “The Eighth Amendment does
not prohibit a State from choosing to admit evidence concerning a murder victim’s
personal characteristics or the impact of the crime on the victim’s family and
community.” Id. at 833.
77
However, “As [the Supreme Court] held in Romano v. Oklahoma, 512 U.S. 1,
114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994), it is not the role of the Eighth Amendment
to establish a special ‘federal code of evidence’ governing ‘the admissibility of
evidence at capital sentencing proceedings.’” Kansas v. Carr, 136 S. Ct. 633, 644
(2016)(quoting Romano, 512 U.S. at 11-12). “Rather, it is the Due Process Clause
that wards off the introduction of ‘unduly prejudicial’18 evidence that would render
the trial fundamentally unfair.” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 825
(1991); citing Brown v. Sanders, 546 U.S. 212, 220-21 (2006))(footnote added;
internal quotations omitted). Therefore, Perkins may not challenge the admission of
collateral-act evidence at his sentencing proceeding under the Eighth Amendment.
“The test prescribed by Romano for a constitutional violation attributable to evidence
improperly admitted at a capital-sentencing proceeding is whether the evidence ‘so
infected the sentencing proceeding with unfairness as to render the jury’s imposition
18
“Evidence is unduly prejudicial when it threatens the fundamental goals of
accuracy and fairness of the trial by misleading the jury or by influencing the jury to
decide the case upon an improper basis.” State v. DeSantis, 456 N.W.2d 600, 608
(Wisc. 1990)(emphasis added). Therefore, “unduly prejudicial” is similar in meaning
to the term “unfairly prejudicial,” which “speaks to the capacity of some concededly
relevant evidence to lure the factfinder into declaring guilt on a ground different from
proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180
(1997); see also Fed. R. Evid. 403, Advisory Committee Notes (“‘Unfair prejudice’
within its context means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.”).
78
of the death penalty a denial of due process.’” Id. at 644-45 (quoting Romano, 512
U.S. at 12).
The issue for this court is whether the admission of the collateral-act evidence
– admitted during either the guilt phase, the sentencing phase, or both – violated
Perkins’s right to due process by so infecting his proceedings with unfairness as to
deny him a fundamentally fair trial.
a. Evidence of the Rapes of D.W. and B.P.
On direct appeal, the Alabama Court of Criminal Appeals held as follows:
First, Perkins contends that the trial court erred by allowing the
State to present the testimony of several witnesses that tended to show
that he had raped two women, B.P. and D.W., on August 1, 1990, and
August 6, 1990, respectively.
...
Before trial, Perkins filed a motion in limine seeking to prevent
the State from introducing evidence of any collateral crimes committed
by Perkins, including the rape of B.P. and the alleged rape of D.W. The
trial court denied the motion without stating a reason. At trial, Perkins’s
counsel objected to the testimony of B.P., Gaddy, Dr. Seigel, Nurse
Herren, Simpson, D.W., Hudson, Dr. Ashley, Nurse Perkins, Stough,
and Rollan, regarding the alleged rapes. The objections were overruled,
and the trial court admitted the testimony, again without stating a reason.
On appeal, Perkins contends that evidence of the alleged rapes
was inadmissible because, he says, it was not probative of any issue in
the case, it did not fall within any of the exceptions to the exclusionary
rule, and it was offered solely to show his bad character or his
propensity to commit criminal acts. Moreover, he maintains that, even
79
if the evidence was probative of an issue in the case and did fall within
one of the exceptions to the exclusionary rule, its prejudicial effect far
outweighed its probative value, and, he says, the detail with which the
State proved the alleged prior rapes “exceeded all permissible bounds of
relevancy.” (Perkins’s brief to this court, pp. 11–12.)
...
. . . “‘The decision whether to allow or not to allow evidence of
collateral crimes or acts as part of the State’s case-in-chief rests within
the sound discretion of the trial judge.’” Akin v. State, 698 So. 2d 228,
234 (Ala. Cr. App. 1996), cert. denied, 698 So. 2d 238 (Ala.1997),
quoting Blanco v. State, 515 So. 2d 115, 120 (Ala. Cr. App. 1987).
In Bradley v. State, 577 So. 2d 541 (Ala. Cr. App. 1990), this
court stated:
“We have recognized that the list of traditionally
recognized exceptions is not exhaustive and fixed. See
Nicks v. State, 521 So. 2d [1018] at 1025 [ (Ala. Cr. App
1987), aff’d, 521 So. 2d 1035 (Ala.), cert. denied, 487 U.S.
1241, 108 S. Ct. 2916, 101 L. Ed. 2d 948 (1988) ]. ‘It must
ever be borne in mind that the state may prove the
accused’s commission of another crime if such other crime
is relevant for any purpose other than that of showing his
guilt through the medium of bad character.’ C. Gamble,
McElroy’s Alabama Evidence § 69.0(1) (3d ed. 1977)
(quoting Mr. Justice McElroy, 2nd ed.)
“‘In all instances, the question is whether the
proposed evidence is primarily to prove the
commission of another disconnected crime, or
whether it is material to some issue in the case. If it
is material and logically relevant to an issue in the
case, whether to prove an element of the crime, or to
controvert a material contention of defendant, it is
not inadmissible because in making the proof the
80
commission of an independent disconnected crime
is an inseparable feature of it.’
“Snead v. State, 243 Ala. 23, 24, 8 So. 2d 269, 270 (1942).
However, even though evidence of collateral crimes or acts
may be relevant to an issue other than the defendant’s
character, it should be excluded if ‘it would serve
comparatively little or no purpose except to arouse the
passion, prejudice, or sympathy of the jury,’ Spellman v.
State, 473 So. 2d 618, 621 (Ala. Cr. App. 1985), or put
another way, ‘unless its probative value is “substantially
outweighed by its undue prejudice,”’ United States v.
Stubbins, 877 F.2d 42, 43 (11th Cir.), cert. denied, 493
U.S. 940, 110 S. Ct. 340, 107 L. Ed. 2d 328 (1989)
(quoting United States v. Beechum, 582 F.2d 898 (5th
Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S. Ct.
1244, 59 L. Ed. 2d 472(1979)).
“. . . .
“Rather than uphold the trial court by straining to
neatly fit the evidence of the three prior incidents into the
narrow confines of the traditionally recognized categories,
we have chosen to review the court’s ruling by determining
whether the evidence was ‘material and logically relevant’
to an issue or issues in the case.”
577 So. 2d at 547-48.
In this case, the evidence of the alleged collateral rapes was
material and logically relevant to show Perkins’s intent and motive in
committing the charged crime. See Knight v. State, 675 So. 2d 487, 499
(Ala. Cr. App. 1995), cert. denied, 675 So. 2d 502 (Ala.1996). “‘If an
accused is charged with a crime that requires a prerequisite intent, . . .
then prior or subsequent criminal acts are admissible to establish that he
had the necessary intent when he committed the instant crime.’” Hinton
v. State, 632 So. 2d 1345, 1347-48 (Ala. Cr. App. 1993), cert. denied,
81
632 So. 2d 1350 (Ala. 1994), quoting Jones v. State, 439 So. 2d 1308,
1310 (Ala. Cr. App. 1983) (emphasis in Hinton omitted). In addition,
“evidence tending to establish motive is always admissible.” Jordan v.
State, 629 So. 2d 738, 741 (Ala. Cr. App. 1993), cert. denied, 511 U.S.
1112, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994). “‘It is permissible in
every criminal case to show that there was an influence, an inducement,
operating on the accused, which may have led or tempted him to commit
the offense.’” Bradley, 577 So. 2d at 549, quoting Bowden v. State, 538
So. 2d 1226, 1235 (Ala. 1988) (emphasis in Bowden ).
To prove the capital-murder charge, the State was required to
show that Perkins intentionally murdered Mrs. Gilliam during the course
of a kidnapping in the first degree. Section 13A-6-43(a)(4), Ala. Code
1975, defines kidnapping in the first degree as “abduct[ing] another
person with intent to . . . [i]nflict physical injury upon him, or to violate
or abuse him sexually.” At trial, the defense theory was that Perkins did
not intend to physically harm or to sexually abuse Mrs. Gilliam when he
abducted her, nor did he intend to kill Mrs. Gilliam. During opening
and closing statements, Perkins’s counsel argued that Perkins was guilty
of murder, but was not guilty of capital murder. Specifically, Perkins’s
counsel argued to the jury that Perkins did not intend to physically harm
or to sexually abuse Mrs. Gilliam when he abducted her, but that he was
merely looking for food and money when Mrs. Gilliam surprised him by
coming outside. According to the defense theory, when Mrs. Gilliam
saw Perkins, she panicked, and Perkins instinctively grabbed her and
took her to the gray truck. Perkins’s counsel further argued that a
struggle ensued in the truck, that the gun went off accidentally, and that
Perkins then took Mrs. Gilliam to Maudeen Hood’s house for help.
Throughout opening and closing arguments, Perkins’s counsel
repeatedly emphasized that there was no evidence that Perkins intended
to physically harm or to sexually abuse Mrs. Gilliam or to kill her.
Because Perkins’s motive and intent in abducting Mrs. Gilliam were
called into question, evidence of the alleged prior rapes was relevant to
contradict Perkins’s version of events and to prove that Perkins’s intent,
when he abducted Mrs. Gilliam, was “to inflict physical injury upon or
to violate or abuse [Mrs. Gilliam] sexually,” an essential element of the
charged crime. The testimony regarding the alleged rapes was
82
admissible because it was probative of matters in issue other than
Perkins’s bad character or his propensity to commit criminal acts.
Furthermore, contrary to Perkins’s contention otherwise, because
evidence of the alleged prior rapes was clearly admissible, the State was
entitled to prove the details of the circumstances surrounding the alleged
rapes. “If evidence of the accused’s commission of another crime is
admissible, the state may prove in meticulous detail the manner in which
the accused committed such other crime.” Bush v. State, 695 So. 2d 70,
85 (Ala. Cr. App. 1995), aff’d, 695 So. 2d 138 (Ala.), cert. denied, 522
U.S. 969, 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997). Finally, we find
that the probative value of the collateral-crimes evidence clearly
outweighed its prejudicial effect, particularly in view of Perkins’s theory
of defense at trial. Accordingly, the trial court did not abuse its
discretion by admitting testimony regarding the two rapes allegedly
committed by Perkins in the two weeks preceding Mrs. Gilliam’s
abduction and murder.
Perkins, 808 So. 2d at 1080-85.
Under the circumstances, the court finds that the trial court did not abuse its
substantial discretion in admitting the evidence of the two rapes occurring just days
before Perkins’s abduction and murder of Mrs. Gilliam. The evidence of two sexual
assault crimes occurring shortly before the abduction of Mrs. Gilliam was relevant
proof that Perkins intended to sexually assault Mrs. Gilliam when he abducted her.
The fact that the State proved the two rapes in “meticulous detail” was not error under
Alabama law. Nothing in the record suggests this evidence was false or misleading.
Moreover, Perkins had an unimpeded opportunity to challenge the evidence.
83
Therefore, the court finds that the admission of the evidence of the rapes of B.P. and
D.W. did not violate Perkins’s right to due process.
b. Incident at Darlene Hall’s House
Perkins also challenges collateral-act evidence consisting of “Darlene Hall
describ[ing] an episode involving a man she identified as Perkins attempting to use
her telephone shortly before Cathy Gilliam was abducted, supplemented by testimony
of law enforcement personnel.” (Doc. 1 ¶ 116 [citing doc. 10, Vol. 11, Tab 19 at
1756-81; id., Vol. 12 at 1978-84].)
The Alabama Court of Criminal Appeals held:
. . . Perkins contends that the trial court erred by allowing the
testimony of Darlene Hall because, he says, her testimony was
inadmissible evidence of collateral crimes.
...
. . . Here, Perkins did not object to Hall’s testimony, nor did he
obtain the express acquiescence of the trial court that an objection would
be unnecessary. Therefore, this issue may be reviewed only for plain
error. Rule 45A, Ala. R. App. P.
Darlene Hall testified that on August 9, 1990, at approximately
3:50 p.m. (just minutes before Mrs. Gilliam was abducted), Perkins
arrived at her house in a blue-gray pickup truck and honked the horn.
Hall stated that she opened her front door and Perkins asked her if her
husband was home. Hall replied that he was not. Perkins then told Hall
that he needed to come in and use her telephone to call a tow truck
because, he said, his truck was stuck in a field behind her house. Hall
told Perkins that he could not come in, but that she would call a wrecker
84
for him. Perkins then gave Hall a telephone number to call, but before
Hall could go back inside her house, Perkins told Hall that he was not
sure if the number he had given her was the right number, and he told
her to wait while he looked in his glove compartment for the number.
Hall told Perkins not to bother looking, that she would try the number
he had given her. Hall then went inside her house, locked the door, and
retrieved a gun from her bedroom closet. When Hall came back to her
front door, Perkins was looking through her front window. At that
point, Hall told her daughter – who had been present throughout the
entire incident – that she was going to shoot Perkins. Perkins stated, “I
think I’ll go somewhere else,” and then quickly left. [(Doc. 10, Vol. 11,
19 at 1764.)] Hall stated that she had recognized Perkins when he first
arrived because she had been reading the newspaper, which contained
a photograph of Perkins. Hall also stated that she went to the Hood
residence later that evening, after hearing about a shooting, and gave a
statement to the police regarding the incident with Perkins. Hall
testified that she did not see a gun or a knife in Perkins’s possession
when Perkins was at her home.
Perkins contends that Hall’s testimony amounted to evidence of
an inadmissible collateral bad act, which, he says, did not fit into any
exception to the exclusionary rule. In addition, he maintains that, even
if Hall’s testimony was admissible under an exception to the
exclusionary rule, its prejudicial effect far outweighed its probative
value; therefore, he argues its admission was error.
Assuming Perkins’s alleged conduct at Hall’s house constituted
a “bad act,” we find that Hall’s testimony regarding Perkins’s actions
only minutes before Mrs. Gilliam’s abduction was admissible to show
part of the continuous transaction leading up the charged crime. . . .
...
“‘In a prosecution for unlawful homicide it is
“permissible to show all that transpired at the time of the
difficulty and everything leading up to and explanatory of
the tragedy.” Moulton v. State, 19 Ala. App. 446, 450, 98
85
So. 709, cert. denied, 210 Ala. 656, 98 So. 715 (1923).
Testimony is admissible if it “tend(s) to prove the
surrounding facts and circumstances leading up to and
relating to the homicide.” Hill v. State, 25 Ala. App. 264,
265, 144 So. 582 (1932). “Evidence of connected acts
leading up to and explanatory of killing, throwing light on
action, animus, or intent of accused, is admissible, though
not res gestae.” Smallwood v. State, 26 Ala. App. 360,
361, 159 So. 699 (1935). See also Palmer v. State, 401 So.
2d 266, 269-70 (Ala. Crim. App.), cert. denied, Ex parte
Palmer, 401 So. 2d 270 (Ala.1981).’”
Read v. State, 686 So. 2d 563, 566 (Ala. Cr. App. 1996), quoting Smith
v. State, 447 So. 2d 1327, 1330 (Ala. Cr. App. 1983), aff’d, 447 So. 2d
1334 (Ala.1984).
In this case, Perkins’s attempt to gain entry into Hall’s home and
the kidnapping of Mrs. Gilliam occurred within minutes of each other
and were part of one continuous criminal transaction. Therefore, the
trial court did not abuse its discretion in admitting Hall’s testimony.
Moreover, we find that Hall’s testimony was also admissible to
show Perkins’s intent. As stated previously, evidence of collateral
crimes and acts is admissible if it is material and logically relevant to an
issue in the case, and is not offered for the purpose of showing the
accused’s bad character. Section 13A-6-43(a)(4), Ala. Code 1975, states
that “[a] person commits the crime of kidnapping in the first degree if he
abducts another person with intent to . . . inflict physical injury upon
him, or to violate or abuse him sexually.” Section 13A-6-40(2), Ala.
Code 1975, defines “abduct,” in pertinent part, as “restrain[ing] a person
with intent to prevent his liberation.” Thus, to establish the crime of
kidnapping in the first degree, the State must prove the intent to inflict
physical injury or to sexually abuse, and the intent to prevent liberation.
We stated above that testimony that Perkins had allegedly raped two
women was relevant to show his intent to sexually abuse Mrs. Gilliam
when he kidnapped her. Here, Hall’s testimony would allow a logical
86
inference that Perkins intended to abduct Mrs. Gilliam, i.e., to prevent
her liberation.
Because Hall’s testimony was not probative only to show
Perkins’s bad character or to show that Perkins acted in conformity with
that bad character, it was properly admitted into evidence. Moreover,
the probative value of the testimony clearly outweighed its prejudicial
effect. Accordingly, there was no error, plain or otherwise, in the trial
court’s admission of the testimony.
Perkins, 808 So. 2d at 1085-88 (emphasis in original).
The court finds the trial court did not abuse its discretion in allowing Mrs.
Hall’s testimony regarding her encounter with Perkins minutes before he abducted
Mrs. Gilliam. At trial, Perkins argued that he did not intend to abduct Mrs. Gilliam,
but that he had abducted her only after she had surprised him when she came outside
as he was looking around her trailer. His attempt to gain entry to Mrs. Hall’s home
and his leaving only after she said, aloud, that she was going to shoot him, would
support a reasonable inference that he intended to abduct Mrs. Gilliam and that he
carried a weapon to better his chances of successfully doing so. The evidence was
relevant to show that Perkins intended to abduct Mrs. Gilliam because he had a
weapon after he had failed to abduct Mrs. Hall because he was unarmed.
Perkins does not allege that Mrs. Hall’s testimony was false or misleading. As
it was relevant, not only to prove the circumstances immediately preceding his
abduction of Mrs. Gilliam, but also to challenge his assertion that he did not intend
87
to abduct Mrs. Gilliam, the court finds Perkins’s right to due process was not violated
by admission of Hall’s testimony.
c. The Gray Truck and the .357 Magnum Handgun
Perkins challenges as improper collateral-act evidence “statements and
testimony [that] suggested that [he] was a thief.” (Doc. 1 ¶ 116 [citing doc. 10, Vol.
11, Tab 17 at 1727-28; id., Vol. 13 at 2061].) With regard to this evidence, the
Alabama Court of Criminal Appeals held:
Last, Perkins contends that the trial court erred by permitting
testimony from three witnesses, Harry Montgomery, James Hudson, Jr.,
and Roy Sanderson, regarding the gray pickup truck that Perkins was
driving on the day of Mrs. Gilliam’s abduction. Specifically, he
contends that Montgomery, Hudson, and Sanderson all testified that the
truck, which belonged to James Hudson, Sr., was stolen, and that at the
time it was stolen, inside it were a .357 Magnum pistol and a highpowered rifle. He maintains that this evidence was not relevant “for any
proper purpose” and that its prejudicial effect far outweighed its
probative value. (Perkins’s brief to this court, p. 23.) Because Perkins
either failed to object to the complained-of testimony or did not receive
an adverse ruling on any objection, this claim may be reviewed only for
plain error. Rule 45A, Ala. R. App. P.
Included in Perkins’s pretrial motion in limine seeking to prevent
the State from introducing evidence of any collateral crimes or acts was
a request that the State be prevented from introducing any testimony
regarding the fact that approximately two to three days before he
abducted and killed Mrs. Gilliam, Perkins had stolen the gray pickup
truck, and that when he stole it, both a .357 Magnum and a highpowered rifle were inside the truck. While arguing against the motion,
the State presented to the trial court the following facts: Two to three
days before Perkins abducted and killed Mrs. Gilliam, he stole the gray
88
pickup truck from the home of James Albert Hudson, Jr., who was
keeping the truck for its owner, Hudson’s father, James Albert Hudson,
Sr. At the time of the theft, Hudson had a .357 Magnum pistol and a
high-powered rifle in the truck. In addition, there were no bullet holes
in the truck while it was in Hudson’s possession, and Hudson could not
recall that anyone had bled while in the truck. As stated above,
Perkins’s motion in limine was denied.
During opening arguments, the prosecutor told the jury that the
evidence would show that the gray pickup truck that Perkins was seen
driving “had originally come from the home of James A. Hudson, Jr.”
[(Doc. 10, Vol. 11, Tab 17 at 1727)], and that the truck contained a .357
Magnum pistol and a high-powered rifle while it was in Hudson’s
possession. The prosecutor also told the jury that, when the gray pickup
truck was found, the .357 Magnum pistol and the high-powered rifle
were missing, but were later found near Perkins’s mother’s and
grandmother’s houses in the Berry area. Perkins did not object to these
statements by the prosecutor.
The record reveals that, in contrast to the prosecutor’s opening
statements and his proffer to the trial court during the pretrial hearing on
the motion in limine, the State did not present any evidence to the jury
that the truck, or the weapons inside the truck were stolen by Perkins.
Rather, the State presented only the following testimony at trial
regarding the truck and the weapons: Harry Montgomery, chief deputy
of the Tuscaloosa County Sheriff’s Department, testified that, pursuant
to the investigation of the gray pickup truck, he discovered that the truck
“belong[ed]” to a man named James Albert Hudson, Sr. [(Id., Vol. 12
at 1962.)] Perkins did not object to this testimony. After Montgomery’s
testimony, Roy Sanderson, a state trooper, testified that he was
conducting personal business in the Berry area near Perkins’s mother’s
and grandmother’s houses on August 12, 1990, when he noticed a highpowered rifle under one of the houses. Perkins objected to Sanderson’s
testimony, but a review of the record reveals that the trial court did not
rule on the objection; rather, the State agreed to cease its questioning of
Sanderson and to put on no further evidence regarding the rifle. This
concession was made by the State after Perkins offered to make the
89
following stipulation of facts, which was read to the jury by the trial
court:
“The defendant caused the death of Cathy Gilliam
with a .357 magnum pistol. That’s number one. Number
two, the Defendant, Mr. Roy Perkins, was in the 1979
Chevrolet gray pickup truck shown in State’s Exhibit
number 23. Number three, Cathy Gilliam’s blood was
found in the 1979 gray Chevrolet pickup truck shown in
State’s Exhibit number 23.”
[(Id., Vol. 13 at 2087.)] During discussions regarding the stipulation,
Perkins refused to stipulate that he killed Mrs. Gilliam while she was in
the gray pickup truck, or that the bullet holes found in the truck after the
murder were not there two to three days before the murder. Perkins
claimed that such evidence was irrelevant. The State agreed to the
stipulation, but stated its intention to present the testimony of James
Hudson, Jr., that there were no bullet holes in the truck two to three days
before Mrs. Gilliam’s abduction. Immediately following the stipulation,
the State presented Hudson’s testimony. Hudson testified that he was
very familiar with the gray pickup truck and that he had last seen the
truck two to three days before Mrs. Gilliam’s abduction. He stated that
when he last saw the truck, there were no bullet holes in it. Hudson did
not testify that he was in possession of the truck, or that the truck had
been stolen. Perkins did not object to Hudson’s testimony.
Perkins contends on appeal that the State’s evidence that Perkins
stole the gray pickup truck, the .357 Magnum pistol, and the highpowered rifle was inadmissible evidence of collateral crimes. Because
it is clear from the record that no evidence was actually introduced at
trial that Perkins stole the truck from Hudson, or that Perkins did not
have permission to drive the truck, or that the truck even contained a
.357 Magnum pistol or a high-powered rifle while it was in Perkins’s
possession, Perkins’s argument on appeal is moot. Apparently,
Perkins’s argument is based on the prosecutor’s statements to the trial
court during the pretrial hearing on Perkins’s motion in limine about the
origins of the truck and the weapons, rather than on the evidence that
90
was actually introduced at trial. As the evidence that was actually
presented to the jury did not reveal a collateral crime, we find no
error, plain or otherwise, in its admission.
Moreover, even if the evidence that the State intended to
introduce at trial, but did not – i.e., that Perkins stole the truck, along
with the .357 Magnum pistol and the high-powered rifle inside the truck
– had been introduced, there would have been no error. As stated above,
although Perkins stipulated that he caused Mrs. Gilliam’s death with a
.357 Magnum pistol, he refused to stipulate that Mrs. Gilliam was shot
while she was inside the truck. The State was entitled to prove the
circumstances of Mrs. Gilliam’s death, including the location of her
shooting. Such evidence was highly relevant to a material element of
the State’s case. Furthermore, because such evidence would have been
admissible had the State chosen to introduce it, the fact that the
prosecutor referred to such evidence during his opening statement –
before he agreed not to proceed with the evidence – was not error, plain
or otherwise.
Perkins, 808 So. 2d at 1090-93 (emphasis added).
The court finds that the record does not support Perkins’s claim that the
evidence of the gray truck and the .357 suggested he was a thief. Moreover, even if
the trial court admitted evidence that Perkins had stolen the truck, which contained
the murder weapon, such evidence was not false or misleading. Certainly, nothing
about this evidence violated Perkins’s right to due process.
91
3. Failure to Give Limiting Instruction
Perkins contends that the trial court’s failure to give a jury instruction limiting
the jury’s use of the collateral-act evidence violated his right to a fair trial and a
reliable sentence. The Alabama Court of Criminal Appeals held:
Finally, Perkins contends that even if all of the collateral-crimes
evidence addressed above was admissible, the trial court’s failure to give
an instruction to the jurors explaining the limited purpose for which the
evidence could be considered constituted reversible error. Because
Perkins did not request a limiting instruction, we may review this claim
only for plain error. Rule 45A, Ala. R. App. P.
We recognize that “[w]here evidence is admissible on a certain
point only, the trial court should advise the jury to consider it on that
point alone.” King v. State, 521 So. 2d 1360, 1362 (Ala. Cr. App. 1987).
However, “[w]hen such evidence is admitted against an appellant, it is
the sole responsibility of the appellant to request the court to instruct the
jury as to the limited and proper purpose for which such evidence is
admitted. If the appellant failed to request such an instruction, she may
be considered to have waived the right to the protective instruction.”
Miller v. State, 405 So. 2d 41, 47 (Ala. Cr. App. 1981). See also Minor
[v. State], 780 So. 2d 707[, 771-73 (Ala. Crim. App. 1999), rev’d 780
So. 2d 796 (Ala. 2000)]; Varner v. State, 497 So. 2d 1135 (Ala. Cr. App.
1986); Weaver v. State, 466 So. 2d 1037 (Ala. Cr. App. 1985); Robinson
v. State, 361 So. 2d 379 (Ala. Cr. App.), cert. denied, 361 So. 2d 383
(Ala. 1978).
Perkins failed to request a limiting instruction regarding the
collateral crimes evidence, even after being repeatedly told by the
prosecutor that the State would not object to such an instruction. Thus,
“[b]ased on established precedent [set forth above] we conclude that the
trial court’s failure to instruct the jury that evidence of [Perkins’s
collateral crimes] could be used only for the limited purpose of [showing
92
his intent] was not plain error. Plain error is “error that is so obvious
that the failure to notice it would seriously affect the fairness or integrity
of the judicial proceedings.” Ex parte Trawick, 698 So. 2d 162, 167
(Ala. 1997), cert. denied, 522 U.S. 1000, 118 S. Ct. 568, 139 L. Ed. 2d
408 (1997). Here, the error was not so “egregious” that it “has or
probably has substantially prejudiced” Perkins. Trawick, 698 So. 2d at
167.
Perkins, 808 So. 2d at 1092-93.
In order to determine whether the omission of a limiting instruction violated
Perkins’s constitutional right to due process, the court must consider whether the lack
of such an instruction “infected the entire trial [so] that the resulting conviction [and
sentence] violated due process.” Henderson v. Kibbe, 431 U.S. 145, 156-57 (1977).
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the constitutional
validity of a state court’s judgment is even greater than the showing
required to establish plain error on direct appeal. The question in such
a collateral proceeding is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due
process”, Cupp v. Naughten, 414 U.S. [141], at 147, 94 S. Ct. [396], at
400, 38 L. Ed. 2d 368 [(1973)], not merely whether “the instruction is
undesirable, erroneous, or even ‘universally condemned,’” id., at 146,
94 S. Ct., at 400.
In this case, the [petitioner’s] burden is especially heavy because
no erroneous instruction was given . . . . An omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement of the law.
93
Kibbe, 431 U.S. at 154-55. In a case addressing a federal defendant’s claim that the
lack of a limiting instruction, when no such instruction was requested, violated his
right to due process, the Eleventh Circuit held:
In determining whether the statement requires reversal because no
limiting instruction was in fact given, we must first decide at whose door
we lay the failure to give the instruction. If the court committed plain
error in failing to recognize the need for the limiting instruction sua
sponte, we must reverse. See Fed. R. Crim. P. 52(b); Fed. R. Evid.
103(d). However, if [petitioner] was required to request the instruction,
his failure to do so caused its absence. See id. at 103(a). Since for
strategic reasons counsel may have chosen not to request an instruction,
we would be reluctant to determine as a matter of law that counsel’s
strategic choice gave rise to a due process violation.
United States v. Peaden, 727 F.2d 1493, 1501 (11th Cir. 1984).
In this case, the failure of the trial court to sua sponte instruct the jury that it
could not consider the collateral-acts evidence – the two rapes, the incident at Mrs.
Hall’s house, and the theft of the gray truck, which contained a .357 magnum
handgun – as evidence that Perkins had the propensity to commit violent and/or
criminal acts did not result in a fundamentally unfair trial. As set forth above,
evidence of the rapes of B.P. and D.W., including the details, was admitted as
relevant evidence of Perkins’s intent and motive when he abducted Mrs. Gilliam.
Evidence of the incident at Mrs. Hall’s house was relevant and admissible to prove
94
Perkins’s actions immediately preceding his abduction and murder of Mrs. Gilliam,19
as well as his intent and motive. And, evidence that Perkins had stolen the gray truck
and the murder weapon was not before the jury, but the jury did hear that Perkins was
driving the gray truck, the gray truck had contained the murder weapon, Mrs.
Gilliam’s blood and bullet holes were evident in the truck when it was found after her
murder, and the blood and bullet holes had not been in the truck in the days preceding
Mrs. Gilliam’s abduction and murder. In light of the relevancy of this evidence in
proving Perkins’s actions on the day of the murder of Mrs. Gilliam, as well as his
intent and motive, the failure to give a limiting instruction – an instruction telling the
jury they could not consider this evidence to find that Perkins should be convicted
because he was a bad person or had the propensity to commit violent and/or criminal
acts but that they could consider the evidence to decide why Perkins abducted Mrs.
Gilliam and what he intended to do to her when he abducted her – did not result in
a fundamentally unfair trial.
19
The Alabama Supreme Court has held that “a limiting instruction is not
required when evidence of other crimes or prior bad acts is properly admitted as part
of the res gestae of the crime with which the defendant is charged.” Johnson v. State,
120 So. 3d 1119, 1129-30 (Ala. 2006)(citing People v. Coney, 98 P.3d 930 (Colo. Ct.
App. 2004); State v. Long, 801 A.2d 221, 242 (N.J. 2002); Camacho v. State, 864
S.W.2d 524, 535 (Tex. Crim. App. 1993).
95
Based on the foregoing, the court finds that neither the admission of the
collateral-act evidence nor the failure to sua sponte give a limiting instruction
violated Perkins’s due process rights at either the guilt or sentencing phase of his
trial. Therefore this ground for habeas relief will be denied.
CONCLUSION
The court finds that Perkins has failed to demonstrate the admission of
collateral-acts evidence and the failure of the trial court to give the jury a limiting
instruction violated his right to due process. Therefore, Perkins is not entitled to
habeas relief on this ground.
E. SUFFICIENCY OF THE EVIDENCE
Perkins argues that Alabama violated his rights under the Due Process Clause
of the Fourteenth Amendment because “the record evidence does not support a capital
murder conviction because no rational juror could have found beyond a reasonable
doubt that Perkins formed the specific intent to kill Cathy Gilliam.” (Doc. 1 ¶ 138
[citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)].) He points to the following
direct and circumstantial evidence in support of his contention that “[a]ny rational
juror would have held grave doubts about Perkins’s intent,” (id. ¶¶ 140-42):
141. . . . The direct evidence consisted of two items that could
not support a finding of intent to kill. First, Cathy Gilliam said after she
was shot that “[Perkins] said, he didn’t mean to do it.” [(Doc. 10, Vol.
96
12 at 1945.)] Second, Perkins said “I didn’t mean to do it” and “I didn’t
mean to hurt her” when Officer Baxter Pate encountered him a few days
later. [(Id., Vol. 13 at 2107.)]
142. The circumstantial evidence bearing on intent to kill
consisted of four items. First, Perkins stipulated at trial that he had
caused Cathy Gilliam’s death with a firearm. [(Id. at 2085-88.)]
Second, Cathy Gilliam stated that the man who shot her “took her –
brought her – there” to Maudeen Hood’s home, where she received
emergency medical treatment. [(Id., Vol. 12 at 1943.)] Third, three
shots had been fired apart from the one that hit Gilliam, consisting of
two bullet holes in the truck’s ceiling and windshield, [(id., Vol. 14 at
2385-87)], and one gunshot wound to Perkins’s right knee, [(id., Vol. 12
at 1948-54)]. Fourth, there was no gunpowder stippling on Cathy
Gilliam’s body, which indicated that she had been shot from a distance
of more than 18 inches. [(Id., Vol. 13 at 2123-24.)]
(Doc. 1 ¶¶ 141-42.) Perkins argues that the state court violated his right to due
process by finding the evidence was sufficient to support the jury’s verdict; as noted
above, he argues, “Any juror would have held grave doubt about [his] intent.” (Id.
¶ 140.)
The Supreme Court has established the following standard for reviewing a
state-court determination of the sufficiency of evidence on habeas review:
The opinion of the Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), makes clear that it is the responsibility
of the jury – not the court – to decide what conclusions should be drawn
from evidence admitted at trial. A reviewing court may set aside the
jury’s verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury. What is more, a federal
court may not overturn a state court decision rejecting a sufficiency of
the evidence challenge simply because the federal court disagrees with
97
the state court. The federal court instead may do so only if the state
court decision was “objectively unreasonable.” Renico v. Lett, 559 U.S.
[766, 773,] 130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010) (internal
quotation marks omitted).
Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter
convictions that they believe to be mistaken, but that they must
nonetheless uphold.
Cavazos v. Smith, 565 U.S. 1, 2 (2011)(per curiam).
In Alabama, “To sustain a conviction under § 13A-5-40(a)(1), Ala. Code 1975,
for the capital offense of murder during a kidnapping, the State must prove beyond
a reasonable doubt: (1) a kidnapping in the first degree, as defined by § 13A-643(a),20 or an attempt thereof; (2) an intentional murder, as defined by § 13A-62(a)(1);21 and (3) that the murder was committed ‘during’ the course of the
‘kidnapping or attempted kidnapping.’” Butler v. State, 781 So. 2d 994, 997 (Ala.
Crim. App. 2000)(footnotes added). “The question whether a defendant intentionally
20
Perkins was charged with the first degree kidnapping of Mrs. Gilliam in
violation of § 13A-6-43(a)(1), which states: “(a) A person commits the crime of
kidnapping in the first degree if he abducts another person with intent to . . . (4)
Inflict physical injury upon him, or to violate or abuse him sexually . . . .” Ala. Code
§ 13A-6-43(a)(4).
21
Pursuant to § 13A-6-2(a)(1), “A person commits the crime of murder if he or
she does any of the following: (1) With intent to cause the death of another person,
he or she causes the death of that person or of another person.” Ala. Code §
13A-6-2(a)(1).
98
caused the death of another person is a question of fact for the jury,” and “Intent may
be inferred from the use of a deadly weapon or from other attendant circumstances.”
Ex parte Carroll, 627 So. 2d 874, 878 (Ala. 1993)(internal citations omitted).
Moreover, “a statement by a defendant,” including pretrial statements, “if disbelieved
by the jury, may be considered as substantive evidence of the defendant’s guilt,
particularly when the elements to be proved for a conviction include highly subjective
elements like the defendant’s intent or knowledge.” United States v. Shabazz, 887
F.3d 1204, 1220 (11th Cir. 2018)(quoting United States v. Brown, 53 F.3d 312, 314,
315 (11th Cir. 1995)(internal quotations omitted); United States v. Alejandro, 118
F.3d 1518, 1521 (11th Cir. 1997)(“The jury could . . . properly consider appellant’s
false exculpatory statements upon his arrest as substantive evidence of his guilty
intent.” (citing United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984))).
The Alabama Court of Criminal Appeals set forth the following evidence as
sufficient to establish Perkins’s guilt of the offense of capital murder during a
kidnapping:
. . . Here, Candace Gilliam testified that she saw a man take her
mother from her home at gunpoint. Perkins admitted that he caused
Mrs. Gilliam’s death with a .357 magnum pistol. This evidence
supported an inference that Perkins intended to kill Mrs. Gilliam.
In addition, the State’s evidence tended to show that Mrs. Gilliam
was not shot during a struggle, as Perkins contended, but instead was
99
shot from at least 18 inches away. When Mrs. Gilliam arrived at the
Hood residence, approximately one hour after she had been abducted
from her home, she had a gunshot wound to her chest, but no hole in her
shirt, thus indicating that she was not wearing her shirt, or that her shirt
had been unbuttoned, when she was shot. Dr. Warner testified that he
found no gunpowder residue around Mrs. Gilliam’s wound, which, he
said, would indicate that the shot was fired from at least 18 inches away,
if Mrs. Gilliam was not wearing a shirt at the time she was shot. From
this evidence, the jury could have drawn a fair inference that the fatal
shot was fired from at least 18 inches away, thus disproving Perkins’s
claim that the gun accidentally went off during a close-quarters struggle
in the gray pickup truck. Viewing this evidence in the light most
favorable to the State, we find that it was sufficient to support a
reasonable inference that Perkins intended to kill Mrs. Gilliam.
Perkins contends, however, that because his version of events –
that the gun accidentally discharged during a struggle – is also supported
by the evidence, the State could not prove a prima facie case of capital
murder. The evidence supports the theory that a struggle occurred
between Perkins and Mrs. Gilliam in the gray pickup truck, but such
evidence in no way reduces or negates the sufficiency of the State’s
evidence tending to show that Perkins intended to kill Mrs. Gilliam.
The State’s theory of the case, which was very similar to the defense’s
theory, was that Mrs. Gilliam struggled against Perkins’s sexual
advances, that Perkins became angry, and that, with the intent to kill, he
shot Mrs. Gilliam. The defense’s theory was that Mrs. Gilliam and
Perkins struggled, and that the gun accidentally discharged. The fact
that the defense’s version of events conflicted with the State’s version
did not render the State’s evidence insufficient; any conflict in the
evidence was a matter of weight and credibility to be resolved by the
jury. . . .
Perkins, 808 So. 2d at 1112-13 (footnote omitted).
Perkins argues that the evidence was insufficient to support a finding that he
intended to kill Mrs. Gilliam because (1) he told Mrs. Gilliam and the arresting
100
officer that he did not mean to kill Mrs. Gilliam, and (2) he took Mrs. Gilliam to Mrs.
Hood’s house. Clearly, a rational factfinder could reject Perkins’s statements and
actions after fatally shooting Mrs. Gilliam as irrelevant to his intentions at the time
he shot her. “[T]he question of a defendant’s intent at the time of the commission of
the crime is usually an issue for the jury to resolve.” Connolly v. State, 500 So. 2d
57, 63 (Ala. Crim. App. 1985)(citing Crowe v. State, 435 So. 2d 1371, 1379 (Ala. Cr.
App. 1983)), aff’d 500 So. 2d 68 (Ala. 1986). Actions and/or expressions of remorse
after the murder does not compel a finding, as a matter of law, that the killing was
unintentional. Certainly, the jury could have considered Perkins’s actions following
the fatal shooting of Mrs. Gilliam as demonstrating his lack of intent, but it was not
required to accept his argument that his actions proved that he did not intend to kill
Mrs. Gilliam at the time he shot her. Under Alabama law, the fact that he shot her
after kidnaping her under circumstances that would allow a finding that he
intentionally pulled the trigger is sufficient to support the jury verdict of capital
murder.
Therefore, the court finds Perkins is not entitled to relief based on his argument
that there was insufficient evidence to convict him of the capital murder of Mrs.
Gilliam.
101
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
F. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
1. Standard of Review
The Supreme Court’s “benchmark” for judging any claim that trial counsel
provided ineffective assistance is “whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
The Court’s opinion in Strickland established a two-pronged standard for judging,
under the Sixth Amendment, the effectiveness of attorneys who represent criminal
defendants at trial:
102
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687; see Williams v. Taylor, 529 U.S. 362, 390 (2000); Grayson v. Thompson,
257 F.3d 1194, 1215 (11th Cir. 2001). The two parts of the Strickland standard are
conjunctive; a petitioner bears the burden of proving both “deficient performance”
and “prejudice” by “a preponderance of competent evidence.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000)(en banc). However, a court is not
required to address both aspects of the Strickland standard when a habeas petitioner
makes an insufficient showing on one of the two prongs. Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000)(“Because both parts of the test must be satisfied in
order to show a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, or vice versa.”).
103
a. The Performance Prong
“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007)(citing Chandler,
218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a
petitioner must prove that counsel made errors so serious that he or she was not
functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S.
at 687. The standard for gauging attorney performance is “reasonableness under
prevailing professional norms.” Id. at 688; see Williams v. Taylor, 529 U.S. 362, 39091 (2000); Darden v. Wainwright, 477 U.S. 168, 184 (1986); Chandler, 218 F.3d at
1313. “The test of reasonableness is not whether counsel could have done something
more or different,” but whether counsel’s performance “fell within the broad range
of reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing Chandler, 218
F.3d at 1313). “Furthermore, [the court] must recognize that omissions are inevitable.
But, the issue is not what is possible or what is prudent or appropriate, but only what
is constitutionally compelled.” Id. (quoting Burger v. Kemp, 483 U.S. 776, 794
(1987))(internal quotations omitted). The Sixth Amendment does not guarantee a
defendant the very best counsel or the most skilled attorney, but only counsel that
performs within reasonable professional norms. “The test has nothing to do with
104
what the best lawyers would have done. Nor is the test even what most good lawyers
would have done. [The court] ask[s] only whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel acted at trial.” White v.
Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective
of the attorney at the time of the alleged error and in light of all the circumstances.
See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001)(giving lawyers
“the benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v.
Singletary, 161 F.3d 1273, 1285-86 (11th Cir. 1998)(noting that Strickland
performance review is a “deferential review of all of the circumstances from the
perspective of counsel at the time of the alleged errors”).
Under this standard, there are no “absolute rules” dictating what
reasonable performance is or what line of defense must be asserted.
[Chandler, 218 F.3d] at 1317. Indeed, as we have recognized,
“[a]bsolute rules would interfere with counsel’s independence – which
is also constitutionally protected — and would restrict the wide latitude
counsel have in making tactical decisions.” Putman v. Head, 268 F.3d
1223, 1244 (11th Cir. 2001).
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. “[A]
court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
105
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.” Id. (internal quotations and citation omitted); see also Rogers
v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)(holding that, “[w]hen reviewing whether
an attorney is ineffective, courts should always presume strongly that counsel’s
performance was reasonable and adequate” (internal quotations omitted)).
“Representation is an art, and an act or omission that is unprofessional in one case
may be sound or even brilliant in another.” Id. at 693.
“Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d
at 1209 (quoting Chandler, 218 F.3d at 1315). “Even if many reasonable lawyers
would not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the
circumstances, would have done so.” Rogers, 13 F.3d at 386.
b. The Prejudice Prong
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). “It is not enough for the [habeas petitioner]
to show that the errors had some conceivable effect on the outcome of the
106
proceeding.” Strickland, 466 U.S. at 693; see also Harrington, 562 U.S. at 112 (“The
likelihood of a different result must be substantial, not just conceivable.”). Instead,
to prove prejudice, the habeas petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the results of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see Williams,
529 U.S. at 391. In the context of the death sentence itself, “the question is whether
there is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695).
In order to satisfy this high standard, a petitioner must present competent
evidence proving “that trial counsel’s deficient performance deprived him of ‘a trial
whose result is reliable.’”
Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir.
2001)(quoting Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice
requires proof of unprofessional errors so egregious that the trial was rendered unfair
and the verdict rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th
Cir. 2001)(quoting Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996)(quoting
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)))(internal quotation marks
omitted).
107
c. Deference Accorded State Court’s Decisions
When the state court has adjudicated a petitioner’s ineffectiveness claims on
the merits, the findings of historical facts made in the course of evaluating that claim
are subject to a presumption of correctness under 28 U.S.C. § 2254(d)(2) and (e)(1).
See Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome the state
court’s finding of fact, the petitioner must show that those findings were unreasonable
in light of the evidence before the state court and carry his burden of proving the facts
by clear and convincing evidence. Deference to a state court’s resolution of a claim
of ineffective assistance involves a double layer of reasonableness. Under the
AEDPA, the federal habeas court may grant relief on such a claim only if the state
court determination involved an “unreasonable application” of Strickland to the facts
of the case. As noted, Strickland requires an assessment of whether counsel’s
conduct was professionally unreasonable and whether such conduct resulted in actual
prejudice. The assessment of the reasonableness of the state court determination and
the assessment of the alleged attorney error cannot be conflated into one. See
Harrington, 562 U.S. at 101-02. Thus, habeas relief on a claim of ineffective
assistance of counsel can be granted with respect to a claim decided on the merits by
the state court only if the habeas court determines that it was “objectively
unreasonable” for the state court to find that counsel’s conduct was not
108
“professionally unreasonable” or did not result in actual prejudice. The Harrington
Court explained,
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. [356], [371], 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284 (2010). An ineffective-assistance claim can function as
a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity
of the very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo
review, the standard for judging counsel’s representation is a most
deferential one. Unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge. It
is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also
Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L.
Ed. 2d 180 (1993). The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom.
Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id., at
689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.
Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in tandem,
review is “doubly” so, Knowles [v. Mirzayance], 556 U.S.[111, 123],
129 S. Ct. [1411], 1420 [(2009)]. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 556 U.S., at
[123], 129 S. Ct. at 1420. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question
109
is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Harrington, 562 U.S. at 105; see also Premo v. Moore, 562 U.S. 115, 123 (2011).
With these standards in mind, the court turns to Perkins’s allegations of
ineffective assistance of counsel.
2. Failure to Strike Juror V.H.
Perkins contends that trial counsel were ineffective because they failed to
remove a biased juror, juror V.H. (See doc. 1 ¶ 154.) He alleges:
155. In Rule 32 proceedings, Perkins’s trial counsel described the
prosecution’s theme as follows: “The State’s theory of the case, it was
obvious, was to portray [Perkins] as a sexual predator completely.”
[(Doc. 10, Vol. 64 at 418.)] The prosecution had informed the defense
before trial that it would present evidence of past rapes to show that
Perkins intended to rape the victim, Cathy Gilliam. [(See, e.g., id., Vol.
24, Tab 43 at 23-31 (prosecutor’s memorandum of law in support of
admitting collateral-rape evidence); see also id., Vol. 4 at 261 (trial
court denying defense’s motion to exclude collateral-rape evidence); id.,
Vol. 64 at 429-30 (defense counsel stating he was aware that
collateral-rapes would be used).)] Trial counsel also knew that Perkins
had been portrayed in the media as a serial rapist out on parole. [(Id.,
Vol. 4 at 238-43.)] That media coverage, combined with evidence of
rapes of two women, rape of a 14-year-old child, and attempted rapes of
several others, would make it especially difficult for jurors to maintain
their objectivity.
156. In voir dire, prospective jurors were asked whether their
lives had been affected by crime. [(Id., Vol. 6 at 642.)] Veniremember
[V.H.] answered that her life had been affected, but she preferred not to
explain details. [(Id.)]
110
157. Later, [V.H.] approached the bench. She stated, “What I
declined to say out there is that, okay, I have been raped once when I
was twelve years old.” [(Id. at 718.)] [V.H.] went on to explain that her
daughters were also rape survivors, and that one daughter, like [V.H.],
had been raped by a cousin:
[A]fter I got grown and had kids of my own, . . . my oldest
daughter . . . was raped. And then my next older daughter, she
was raped.
I was raped by my mother’s sister’s son. We didn’t press
charges because I felt that was too embarrassing . . . .
And with my older daughter, I did press charges. She was
raped in my backyard. She was coming home, and this guy pulled
her in the utility room and raped her. And my next oldest
daughter . . . [was raped by] my oldest sister’s oldest son . . . .
She did not tell me about it. She had lived with this since she was
about eleven years old. Well he started molesting her up until age
fifteen . . . .
[(Id. at 718-19.)] [V.H.] stated that she had not gotten counseling for
herself or her children, and said that the experiences remained on her
mind:
And my kids didn’t want the public to know about that. Then I
called Indian Rivers [Mental Health Center]. They [were] telling
me from the experience of my life and I never really got it out of
my mind . . . .
[(Id. at 719-20.)] [V.H.] added that someone had tried “to get my
children and me to go have counseling.” [(Id. at 720.)]
158. When [V.H.] finished describing how her life had been
affected by rape, defense counsel asked two questions:
111
THE COURT: Let me have the [attorneys] ask you some
questions. Anyone have any questions?
MR. STEVERSON: You’ve had some very serious things happen
to you, Ms. [V.H.]. Now the fact that these things have happened
to you, would that cause you to not be able to be fair and
impartial in this case?
[V.H.]: Not intentionally. I wouldn’t intentionally misjudge
someone because what had happened to me in my life because I
feel like everyone should have the benefit of the doubt and then
judge someone according to how you feel with your mind and
within your heart. And then let God lead the way, whatever [my]
decision may be.
MR. STEVERSON: So you think you could be fair and impartial
despite these things that have happened to you?
[V.H.]: Yes.
[THE STATE]: We have no questions.
[(Id. at 720-21.)] At that point, the court had not informed [V.H.] that
Perkins’s case had anything to do with rape. [(See id., Vol. 5 at 571-72
(the trial court’s synopsis of the crime to prospective jurors).)] No
further questions were asked of [V.H.] about this matter.
159. In addition to what [V.H.] said about her experience as a
rape survivor, defense counsel had four other sources of knowledge
about her. The first source consisted of [V.H.]’s responses to questions
about her perspective on the rights of victims and criminal defendants.
[(Id., Vol. 6 at 634-74.)] She agreed with the proposition that an
innocent defendant would testify and say that he is innocent instead of
remaining silent. [(Id. at 673.)] [V.H.] explained, “If I was the
Defendant, I feel like if I didn’t do the crime, I don’t think I should sit
there and just let the DA or whoever, you know, say I did.” [(Id.)]]
[V.H.] also believed that crime victims have too few rights, [(id. at 636,
112
638)], that defendants charged with crimes are treated too leniently, [(id.
at 640)], and that Perkins must have done something wrong or else he
would not be on trial, [(id. at 646)].22 The only other prospective juror
who agreed with these four propositions was [J.B.], who was excluded
for cause in response to a motion made by the defense.23 [(Id., Vol.2,
22
During voir dire, defense counsel asked, “Now, how many of you believe that
Mr. Perkins must have done something or he wouldn’t be on trial?” (Doc. 10, Vol.
6 at 646.) V.H., along with 29 other prospective jurors answered affirmatively. (Id.
at 646-48.) After some confusion and discussion, counsel asked if there was
“[a]nybody . . . who cannot look at Mr. Perkins . . . and say: Mr. Perkins, I believe
that you are presumed innocent, and I believe you’re innocent until the State comes
forth with evidence to prove beyond a reasonable doubt to me that you’re guilty?”
(Id. at 657.) Two prospective jurors, not including V.H., responded that they would
not be able to presume Perkins was innocent. (Id. at 658-60.)
23
Defense counsel moved to exclude J.B. for cause based on his statements that
what he learned about the case from media sources might have “some impact
subconsciously” on his ability to decide the case only on what he learned in the
courtroom. (Doc. 10, Vol. 7 at 832-33.) During jury selection, J.B. answered as
follows:
[Prosecutor]: . . . [I]f the Court instructed you . . . to put
everything you’ve seen and read out of your mind and consider only
what came from that witness stand and then in the form of exhibits, you
could do that; couldn’t you?
[J.B.]: I would do my best to do that, yes.
[Prosecutor]: Could you – Would it be fair to say that you could
do that?
[J.B.]: I say like anything else, I’d try very hard to do that. I
wouldn’t consciously –
[Prosecutor]: Yes, sir.
113
...
[Defense Counsel]: . . . [T]ell me what you remember from what
you’ve read.
[J.B.]: I would say this, when you say you remember, I would say
the things that impacted me, that I really recall; and basically, the fact
that the paper said that he was a convicted rapist. And certain things hit
me. And that’s one of the things that I remember.
...
[J.B.]: The only thing I recall from back when it happened . . .
something about the manhunt aspect of it. And that’s about all. . . .
...
[Defense Counsel]: Anything else impact you?
[J.B.]: And I thought it said something about life sentence – I
didn’t really dig into it too deeply. Like I say, certain things I remember
and others I didn’t.
...
[Defense Counsel]: Would it be fair to say that because you read
several articles and most recently read two yesterday that it would be
very hard for you to put that completely out of your mind. And if there
was something in those articles that didn’t come out in this courtroom,
would be hard for you to forget about them?
[J.B.]: . . . Just to be perfectly frank, as much as you try to do it,
it would still somewhere be in your subconscious –
[Defense Counsel]: For instance, if [there] wasn’t any evidence
in this case that he was serving a life sentence and there wasn’t any
114
Tab 2 at 295.)]
160. The second source of knowledge consisted of [V.H.]’s
responses to questions about the death penalty, a punishment that she
supported. In one-word responses to leading questions, [V.H.] agreed
that she would have no problems following capital sentencing law, that
she could listen to aggravating as well as mitigating evidence if Perkins
were found guilty of capital murder, and that she could leave her
“opinions about the death penalty outside [the] door.” [(Id., Vol. 9 at
1326.)] She also said that she approved of the death penalty “to some
point” and that “if the person was brutally violent, I feel that [the] death
penalty should be in effect.” [(Id. at 1340 (emphasis added).)] She did
not believe that death or imprisonment would deter crime. [(Id. at
1341.)] She said that “just like everyone else” she would “weigh all the
evidence” before deciding on punishment.24 [(Id. at 1342.)]
evidence in this case about the manhunt, you would find it real hard to
put those out of your mind, wouldn’t you?
[J.B.]: Basically.
(Id. 833-37.) The defense’s motion to strike J.B. for cause, which the State did not
oppose, was granted. (Id., Vol. 2 at 295.)
24
The transcript attributes this statement to V.H.; however, this appears to be
a scrivener’s error. (See doc. 10, Vol. 9 at 1340-42.) The transcript states:
MR. SMITH: . . . [V.H.], what do you think about the death
penalty?
[V.H.] Well I think it should be in effect to some point. And the
reason why I say that, it depends on what kind of crime that had been
committed and if the person was brutally violent, I feel that the death
penalty should be in effect. And then I also believe that someone should
be put away for life without the possibility of parole.
...
115
161. The third source of knowledge consisted of [V.H.]’s
responses to questions about pretrial publicity. [V.H.] gave neutral
MR. SMITH: . . . [D]o you feel like the fact that someone was
sentenced to death that that would keep somebody else from committing
a crime?
[V.H.]: No.
...
MR. SMITH: Okay. Ms. [D.H.], have you had any discussions
about the death penalty before today –
[D.H.]: Not much.
MR. SMITH: Okay. Of course, you realize that this is the time
that you have to think about it because you could find yourself sitting on
the jury that if you got to that point and the State proved their case
beyond a reasonable doubt that you’d have to consider that.
[D.H.]: Yes, sir.
MR. SMITH: So tell me what your feelings are?
(Id. at 1340-42.) At this point, the transcript identifies the prospective juror that is
answering as V.H., when it appears that D.H. is still responding to counsel’s
questions. At this point V.H./D.H. states:
Well, just like everyone else, I believe in some cases, it’s right for the
death penalty. In others, I believe that life without parole is good also.
I would have to weigh all the evidence. And I would weigh from his
childhood, and I would weigh other circumstances, you know. But I
believe we have to weigh out, everybody, and then come up with a
decision.
(Id. at 1342.)
116
responses to leading questions, indicating that she believed that she
could be impartial regardless of what she had heard about the crime.
[(Id. at 1393-94.)] She said that she only knew what she read in the
newspaper, which was “very little, no more than he [was] suppose[d] to
have [done] this to this woman.” [(Id. at 1395.)] She also said that she
had not been following the story recently. [(Id. at 1395-96.)] Her views
were substantially identical to those of many other qualified jurors, who
also had been exposed to publicity but believed that they could remain
impartial.
162. The fourth source of knowledge consisted of [V.H.]’s
responses in a juror questionnaire. [(Id., Vol. 22 at 419-24.)] [V.H.]’s
responses there were, like her responses during voir dire, unremarkable
relative to those of other jurors and provided little or no meaningful
insight into her experiences, attitude, or beliefs.
163. Knowing that the prosecution’s case would involve
allegations that Perkins had raped or intended to rape several women,
including his cousin and a 14-year-old girl, defense counsel did not
challenge [V.H.] for cause, and they did not use a peremptory strike to
exclude her. [V.H.] sat on Perkins’s jury.
(Id. ¶¶ 155-63 [footnotes added].) He alleged counsel’s performance was deficient
and that prejudice should be presumed because of V.H.’s actual and implied bias.
(See id. ¶¶ 167, 189-93, 195-96.)
The Rule 32 court found –
This claim was raised on appeal and rejected by the appellate
court(s). It cannot form the basis of an ineffective assistance of counsel
claim. Even if it could be re-litigated, the claim fails as there is no proof
that trial counsel were ineffective nor that any challenge to the juror[ ]
in question would have been sustained by the trial judge.
(Doc. 10, Vol. 56, Tab 63 at 4493.)
117
The Alabama Court of Criminal Appeals rejected Perkins’s ineffectiveassistance claim on appeal from the Rule 32 Order; it held:
This Court notes that the portion of the circuit court’s order
holding that this claim was raised on direct appeal is erroneous. On
direct appeal, this Court specifically addressed Perkins’s claim that the
trial court erred in denying 14 of Perkins’s challenges for cause. This
Court found no error in the court’s failure to remove those 14 jurors for
cause. Perkins, 808 So. 2d at 1073-75. Only one juror who is
challenged in this postconviction proceeding, N.W., was also challenged
on direct appeal for a different reason than the reason raised in this
proceeding. Nonetheless, the circuit court gave alternative grounds for
denying relief on these claims. Moreover, this Court may affirm a lower
court’s ruling on a postconviction petition if it is correct for any reason.
See McNabb v. State, 991 So. 2d 313, 333 (Ala. Crim. App. 2007).
When reviewing claims of ineffective assistance of counsel
related to counsel’s performance during voir dire examination, this
Court gives great deference to the counsel’s decisions.
“Counsel is . . . accorded particular deference when
conducting voir dire. An attorney’s actions during voir
dire are considered to be matters of trial strategy. Nguyen
v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)(citing
Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995)). A
strategic decision cannot be the basis for a claim of
ineffective assistance unless counsel’s decision is shown to
be so ill-chosen that it permeates the entire trial with
obvious unfairness. Id.”
Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001).
“[W]here a postconviction motion alleges that trial counsel was
ineffective for failing to raise or preserve a cause challenge, the
defendant must demonstrate that a juror was actually biased.”
Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007). “Because [the
118
appellant’s] claim of ineffective assistance of counsel is founded upon
a claim that counsel failed to strike a biased juror, [the appellant] must
show that the juror was actually biased against him.” Miller v. Francis,
269 F.3d 609, 616 (6th Cir. 2001)(citing Hughes v. United States, 258
F.3d 453, 458 (6th Cir. 2001)). “[The appellant’s] claim of ineffective
assistance of counsel is grounded in the claim that counsel failed to
strike a biased juror. To maintain a claim that a biased juror prejudiced
him, however, [the appellant] must show that the juror was actually
biased against him.” Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995)
(citing Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed.2d
78 (1981)). “[T]o show attorney error and prejudice in defense
counsel’s failure to use peremptory strikes for [biased] veniremen, it
is necessary for [the appellant] to show that the veniremen did indeed
harbor actual bias against [the appellant].” Parker v. Turpin, 60 F.
Supp. 2d 1332, 1362 (N.D. Ga. 1999). “Few decisions at trial are as
subjective or prone to individual attorney strategy as juror voir dire,
where decisions are often made on intangible factors.” Miller, 269 F.3d
at 620.
“Because a defendant must demonstrate prejudice in a
[post-conviction] proceeding, post-conviction relief based
on a lawyer’s incompetence with regard to the composition
of the jury is reserved for a narrow class of cases where
prejudice is apparent from the record, where a biased juror
actually served on the jury.”
Jenkins v. State, 824 So. 2d 977, 982 (Fla. App. 2002).
...
. . . Perkins argues that counsel was ineffective for failing to
challenge for cause or use one of his peremptory strikes to remove juror
V.H. V.H. said during voir dire examination that she had been raped by
her first cousin when she was 12 years old and that she had two
daughters who had been raped. V.H. was extensively questioned and
indicated that she could be impartial and base her decision on the
evidence presented. At the [R. 32] evidentiary hearing, Steverson
119
testified that he did not remember why they did not move to strike V.H.,
but added that when striking a jury it “depends on who else [is] on the
jury” and who “may be better or worse choices.” ([Doc. 10, Vol. 63 at]
249.) Smith testified that he could not remember why they did not strike
V.H. but that “striking a jury is a weighing process, that you look at the
positives and the negatives . . . . And sometimes you have people that
you wouldn’t really want on there, but you don’t – you don’t end up
striking them for other reasons.” ([Id., Vol. 64 at] 441-42.)
This Court has examined the voir dire examination of the
prospective jurors. The voir dire was extensive and consisted mainly of
questions regarding the publicity surrounding the case and the
prospective jurors’ views on capital punishment. V.H. responded that
she did not believe that the death penalty was a deterrent to crime, that
she believed that a sentence of life in prison was warranted in some
cases, that she would have to weigh all the evidence in regard to
punishment, and that voting whether a defendant lived or died was a
very grave responsibility. ([Id., Vol. 9 at] 1342.)
The Utah Court of Appeals discussed, in depth, the law related to
ineffective assistance of counsel for failing to strike a prospective juror:
“We are unaware of, and defendant has not brought to our
attention, any rule that automatically disqualifies
prospective jurors who have been, or have friends or
relatives who have been, victims of crimes similar to those
at issue in the case where they might sit as jurors.
Furthermore, cases in various state and federal jurisdictions
demonstrate that when trial counsel allows the seating of
jurors, who upon initial voir dire inquiry appear biased,
courts deny the ineffective assistance claim unless
counsel’s actions could not conceivably constitute
legitimate trial tactics. See, e.g., Singleton v. Lockhart, 871
F.2d 1395, 1399-1400 (8th Cir. 1989)(in capital murder
case, relative of a murder victim was not actually biased
and counsel’s failure to challenge him was tactical);
Houston v. Nelson, 404 F. Supp. 1108, 1116 (C.D. Cal.
120
1975)(in pre-Strickland [v. Washington, 466 U.S. 668
(1984),] case, where juror expressed ‘a particularly strong
feeling against’ kidnapping, but gave assurances of ability
to consider evidence fairly, counsel’s decision not to
challenge was legitimate trial tactic); Ogle v. State, 807
S.W.2d 538, 541-42 (Mo. App. 1991)(where juror in rape
case said he ‘[p]robably would’ be able to set aside
sister-in-law’s rape, decision not to challenge did not
constitute ineffective assistance); Childers v. State, 764
P.2d 900, 904 (Okla. Crim. App. 1988)(no ineffective
assistance where unchallenged juror in rape case said she
could set aside the fact a friend’s daughter was raped and
murdered, even though she was afraid same could happen
to her daughter). Cf. State v. Terry, 601 So. 2d 161, 163-64
(Ala. Crim. App. 1992)(where counsel testified at
post-conviction hearing that he did not know how to strike
jurors and juror who said she would side with the State
remained unchallenged, defendant received ineffective
assistance); Presley v. State, 750 S.W.2d 602, 604-608
(Mo. App. [1988])(assistance ineffective where juror said
he and family were crime victims and he would be partial,
but counsel thought he said impartial, and failed to
challenge), cert. denied, 488 U.S. 975, 109 S. Ct. 514, 102
L. Ed. 2d 549 (1988).
“Because we ‘will not second-guess a trial attorney’s
legitimate use of judgment as to trial tactics or strategy,’
State v. Pascual, 804 P.2d 553, 556 (Utah App. 1991)
(quoting State v. Wight, 765 P.2d 12, 15 (Utah App.
1988)), we hold that counsel’s performance did not fall
below an objective standard of reasonableness.
Consequently, defendant fails to ‘overcome the strong
presumption that trial counsel rendered adequate assistance
and exercised reasonable professional judgment.’ State v.
Bullock, 791 P.2d 155, 159–60 (Utah 1989), cert. denied,
497 U.S. 1024, 110 S. Ct. 3270, 111 L. Ed. 2d 780 (1990).”
121
State v. Tennyson, 850 P.2d 461, 469-70 (Utah Ct. App. 1993).
Our research shows that other jurisdictions have found counsel’s
performance deficient only after counsel failed to strike a juror who
unequivocally stated that he or she was biased against the defendant and
the juror was not rehabilitated.
“In Virgil [v. Dretke, 446 F.3d 598 (5th Cir. 2006)], the
defendant was convicted by a jury that included two jurors,
Roger Sumlin and Thomas Sims, who had expressly stated
that they would be unable to be fair and impartial. We held
that counsel’s failure to challenge for cause or peremptorily
after Sumlin and Sims had offered unchallenged statements
of bias constituted deficient performance under Strickland
[v. Washington, 466 U.S. 668 (1984) ].”
Biagas v. Valentine, 265 Fed. App’x 166, 171-72 (5th Cir. 2008)(not
selected for publication in the Federal Reporter)(footnotes omitted).
See Seigfried v. Greer, 372 Fed. App’x 536, 541 (5th Cir. 2010)(not
selected for publication in the Federal Reporter)(“Because we have
concluded that Juror 2 did not demonstrate actual bias, however, trial
counsel’s failure to raise a for-cause challenge does not constitute
error.”); Hughes, 258 F.3d at 462 (“When a venireperson expressly
admits bias on voir dire, without a court response to follow-up, for
counsel not to respond in turn is simply a failure ‘to exercise the
customary skill and diligence that a reasonably competent attorney
would provide.’ [Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir.
1992) ].”).
“In People v. Begay, 377 Ill. App. 3d 417, 316 Ill. Dec.
574, 879 N.E.2d 962 (2007), the defendant challenged his
trial attorney’s failure to seek removal of a juror for cause.
During voir dire, the juror stated that her mother had been
assaulted at knifepoint during a robbery. When the trial
court asked the juror whether that experience would affect
her ability to be fair and impartial, the juror said it would.
The court then stated, ‘All right. So you wouldn’t be fair,
122
either?’ The juror replied, ‘No.’ Id. at 423, 316 Ill. Dec.
574, 879 N.E.2d 962. In rejecting the defendant’s
argument that her counsel’s performance was deficient
under Strickland [v. Washington, 466 U.S. 668 (1984) ],
the appellate court theorized that defense counsel could
have believed that the juror would sympathize with the
defendant, who claimed that when the offenses occurred,
she was being attacked by a knife-wielding aggressor.”
People v. Manning, 241 Ill. 2d 319, 336, 350 Ill. Dec. 262, 272, 948
N.E.2d 542, 552 (2011).
In this case, V.H. did not unequivocally state that she could not
be impartial. Nor did V.H. testify at the postconviction evidentiary
hearing about any perceived bias against Perkins. The record clearly
shows that counsel was aware of V.H.’s history and that during voir dire
counsel instead chose to concentrate on questions related to prejudicial
pretrial publicity and the jurors’ views in support of capital punishment.
Given that counsel stipulated that Perkins caused the victim’s death,
counsel chose to focus on the penalty phase. During voir dire, V.H.
indicated that she knew that sentencing Perkins would be a grave
responsibility and that she did not believe that the death penalty was a
deterrent. It is reasonable to conclude that counsel believed that this
juror would be more favorable to a sentence of life in prison. Based on
the record in this case, this Court agrees with the circuit court’s
conclusion that Perkins failed to meet his burden of establishing that
counsel was ineffective for not striking V.H. Specifically, he failed to
show that counsel’s decision not to strike V.H. was anything other than
a strategic decision.
“[Defendants’] trial counsel did not simply ‘go through the
motions’ in voir dire. He sought a change of venue, was
successful in having potential jurors dismissed before voir
dire based on their responses to the questionnaires,
challenged jurors for cause during voir dire, and exercised
five peremptory challenges. These strategic decisions were
made based on his goal to educate the jury and choose a
123
fair, impartial jury which would not be influenced by the
publicity surrounding the case or by racial prejudice. This
is not an unreasonable goal in choosing a jury, and trial
counsel’s strategy in reaching that goal was not objectively
unreasonable.”
Garcia v. State, 678 N.W.2d 568, 573 (N.D. 2004).
Perkins failed to satisfy the Strickland test in regard to V.H.;
therefore, relief was correctly denied on this claim.
Perkins v. State, 144 So. 3d 457, 472-75 (Ala. Crim. App. 2012)(emphasis added;
footnote omitted).
In order to establish that his trial counsel were constitutionally ineffective for
failing to strike V.H., Perkins must prove deficient performance – no reasonable
attorney would have seated V.H. – and prejudice – “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The Alabama court found that seating
V.H. was not deficient performance based on V.H.’s answers to questions during voir
dire and counsel’s focus on the penalty phase of the trial, and, because Perkins did not
show V.H. was actually biased, he had not established Strickland prejudice.
Perkins contends that V.H. was actually biased, (doc. 1 ¶¶ 170-74), and that she
was impliedly biased, (id. ¶¶ 176-81). He also contends that counsel’s failure to
remove a biased juror should be presumed prejudicial. (Id. ¶ 195.)
124
The court notes that V.H. did not indicate during voir dire that she was biased.
Also, nothing was presented during post-conviction proceedings that she had been
actually biased against Perkins during deliberations. Therefore, the court finds the
Alabama court’s factual determination that defense counsel was not on notice that
V.H. was actually biased was not unreasonable.
Perkins contends that V.H., due to the circumstance of her being a victim of
rape by a relative and her daughters being victims of rape, was impliedly biased
against him. “The bias of a prospective juror may be actual or implied; that is, it may
be bias in fact or bias conclusively presumed as matter of law,” – “a bias attributable
in law to the prospective juror regardless of actual partiality.” United States v. Wood,
299 U.S. 123, 133-34 (1936)(emphasis added). Bias of a juror is implied in “some
extreme situations,” including “a revelation that the juror is an actual employee of the
prosecuting agency, that the juror is a close relative of one of the participants in the
trial or the criminal transaction, or that the juror was a witness or somehow involved
in the criminal transaction.” Smith v. Phillips, 455 U.S. 209, 222 (1982)(O’Connor,
J., concurring; emphasis added). However, “being a victim of criminal acts did not
disqualify [V.H.] from serving” based on implied bias. See United States v. Lopez,
445 Fed. Appx. 190, 193 (11th Cir. 2011)(citing United States v. Tegzes, 715 F.2d
505, 507 (11th Cir. 1983)). “[A] rape victim as a matter of law [is not] incapable of
125
being impartial in the trial of an accused rapist.” Gonzales v. Thomas, 99 F.3d 978,
989 (10th Cir. 1996). “To hold that no rape victim could ever be an impartial juror
in a rape trial would, we think, insult not only all rape victims but also our entire jury
system, which is built upon the assumption that jurors will honestly try ‘to live up to
the sanctity of [their] oath.’” Id. at 989-90 (quoting Dennis v. United States, 339 U.S.
162, 171 (1950)); see also Owen v. Fla. Dep’t of Corr., 686 F.3d 1181, 1197-98 (11th
Cir. 2012);25 Fields v. Brown, 503 F.3d 755, 774 and n.12 (9th Cir.
25
In Owen, a case in which the petitioner claimed his counsel was ineffective
for failing to strike a juror whose daughter had been raped during a home invasion,
the Eleventh Circuit held:
As to the performance prong, Owen contends that no reasonable
defense attorney would have permitted Knowles to sit on the jury
because her daughter's rape in the home invasion was so traumatic and
so similar to the facts of the Slattery murder that Knowles could never
consider Owen's insanity defense and mitigation case in an unbiased
way. Owen, however, ignores Knowles's many other voir dire
responses. For example, Knowles repeatedly insisted she could put the
incident aside in deciding Owen's case. Defense counsel Haughwout
questioned Knowles about the incident at length several times and
candidly told Knowles she was “concern[ed]” about whether the
incident would affect Knowles's view of the evidence and her
decisionmaking. Knowles never equivocated on whether she could
judge the evidence fairly. Knowles repeatedly assured trial counsel that
she could put aside her own experience and decide the case fairly, on its
own merits. Moreover, the home invasion crime occurred two years
earlier and the perpetrator was caught and sentenced to 18 years'
imprisonment, a sentence with which Knowles “was pleased.”
Importantly too, Knowles gave many responses in voir dire that
126
2007)(“Being the spouse of a rape victim is not, in and of itself, such an ‘extreme’ or
‘extraordinary’ situation that it should automatically disqualify one from serving on
a jury in a case that involves rape.”)(citing, inter alia, Jones v. Cooper, 311 F.3d 306,
suggested she might be a very favorable juror from the defense
perspective. Regarding the death penalty, Knowles said she did not
believe it should be imposed automatically; she would want to hear the
entire case before deciding on a penalty recommendation; and she could
weigh the evidence and recommend life, if appropriate, even in a
horrible case. Regarding an insanity defense, Knowles agreed that
someone could be so mentally ill that he does not know what he is
doing. Knowles “would listen” and “weigh the evidence” on insanity.
Knowles said that the possibility a defendant judged insane could be
released in the future while still dangerous (a possibility that other
potential jurors said concerned them) would not weigh on her mind
while she was deciding the insanity issue.
In sum, Knowles answered all counsel's questions in a manner
indicative of an unbiased juror. Indeed, Knowles's responses to the voir
dire questions about critical issues such as the burden of proof, the
non-automatic nature of the death penalty, the ability to be objective,
and the ability to consider an insanity defense — exactly what Owen
sought to prove — strongly suggested Knowles would be a capable
juror. Owen had experienced defense counsel, who are “strongly
presumed to have . . . made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.
CT. at 2066. Based on these facts, Owen's trial counsel could have
reasonably chosen not to strike Knowles from the jury. Thus, Owen has
not shown deficient performance by his trial counsel in not striking
Knowles and, therefore, Owen has not shown the Florida Supreme Court
decision as to Knowles was unreasonable, much less contrary to clearly
established federal law.
Owen, 686 F.3d at 1197-98.
127
312-13 (4th Cir. 2002)(“The mere fact that the juror's relatives had a history of arrests
and jury trials certainly does not reach the high standard needed for the implication
of bias.”); United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997)(Just as we have
refused to carve out an overly broad category of presumed bias based on occupational
or status relationships, so we also decline to hold as a general matter that, where a
juror has engaged in conduct similar to that of the defendant at trial, the trial judge
must presume bias. Such cases are unlikely to present the “extreme situations” that
call for mandatory removal. The exclusion of Juror No. 7 was, therefore, not
compulsory.”)(emphasis in original; footnote omitted)).
As noted by the Court of Criminal Appeals, “The voir dire was extensive,” and,
in particular, “V.H. responded that she did not believe that the death penalty was a
deterrent to crime, that she believed that a sentence of life in prison was warranted in
some cases, that she would have to weigh all the evidence in regard to punishment,26
and that voting whether a defendant lived or died was a very grave responsibility.”
See Perkins, 144 So. 3d at 473 (footnote added). The fact that V.H. had personal
experience as a rape victim and that members of her family were rape victims, when
considered together with her answers during voir dire, does not demonstrate that trial
26
See footnote 24, supra. Juror V.H. may not have been the juror who stated
that she “would have to weigh all the evidence.” (See doc. 10, Vol. 9 at 1342.)
However the trial transcript does attribute this statement to V.H. (Id.)
128
counsel knew or should have known she was biased, actually or implicitly, against
Perkins. Given this information, and considering trial counsel’s statements they
exercised their strikes based on a weighing of their choices among prospective jurors,
see Perkins, 144 So. 3d at 473 (quoting trial counsel as stating, “when striking a jury
it ‘depends on who else [is] on the jury’ and who ‘may be better or worse choices,’”
and “‘striking a jury is a weighing process, that you look at the positives and the
negatives [and] you have people that you wouldn't really want on there, but you don't
. . . end up striking them for other reasons’”)(citations omitted), the court finds that
the Alabama court’s determination, that trial counsel’s performance was not deficient
because a reasonable attorney could have chosen not to challenge for cause or to use
a peremptory challenge to exclude juror V.H., was not unreasonable and/or contrary
to Strickland.
Therefore, Perkins’s ineffective-assistance claim based on counsel’s failure to
exclude V.H. from the panel will be denied.
Assuming that Perkins had established that his counsel’s performance was
deficient, the court finds that Perkins has not established Strickland prejudice.
Perkins contends that the Alabama court did not address the prejudice prong
on Strickland. The court disagrees. The Court of Criminal Appeals held that Perkins
had not established that V.H. was actually biased against him in order to establish
129
prejudice. See Perkins, 144 So. 3d at 472 (“The appellant's claim of ineffective
assistance of counsel is grounded in the claim that counsel failed to strike a biased
juror. To maintain a claim that a biased juror prejudiced him, however, the appellant
must show that the juror was actually biased against him. To show attorney error and
prejudice in defense counsel's failure to use peremptory strikes for biased veniremen,
it is necessary for the appellant to show that the veniremen did indeed harbor actual
bias against the appellant.”)(quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.
1995); Parker v. Turpin, 60 F. Supp. 2d 1332, 1362 (N.D. Ga. 1999))(internal
citations and quotations omitted); id. at 75(noting the lack of evidence that V.H. was
actually biased). The United States Supreme Court has not decided whether a habeas
petitioner must prove actual bias of a juror to established prejudice sufficient to
support an ineffective assistance of counsel claim based on the seating of a particular
juror. Therefore, the Alabama court’s decision requiring Perkins to show actual bias
to prove Strickland prejudice is not contrary to any Supreme Court precedent.
Also, even if a petitioner could establish prejudice based on the implied bias
of a juror, the petitioner is still required to establish that, in fact, a biased juror sat on
his jury. “To ‘show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,’ [the
petitioner] must show that at least one juror was biased; if no juror were biased, then
130
there is no ‘reasonable probability that . . . the result of the proceeding would have
been different.’”
Owen, 686 F.3d at 1201 (quoting Strickland, 466 U.S. at
694)(emphasis added); see Brown v. Jones, 255 F.3d at 1280 (holding petitioner
alleging ineffective assistance based on counsel’s failure to ask reverse Witherspoon
questions during voir dire had failed to show Strickland prejudice because he had
“failed to adduce any evidence that any juror was biased in favor of the death
penalty”); see, e.g., Villanueva v. Stephens, 555 Fed. Appx. 300, 306 (5th Cir.
2014)(“[U]nder Strickland, a petitioner alleging deficient performance during jury
selection must identify ‘any particular juror [who] was in fact prejudiced’ and must
establish that had counsel’s questioning focused on a specific area of bias, the bias
would have been found.” (quoting Neville v. Dretke, 423 F.3d 474, 483 (5th Cir.
2005)))(emphasis added); Davis v. Woodford, 384 F.3d 628, 643 (9th Cir.
2004)(“Establishing Strickland prejudice in the context of juror selection requires a
showing that, as a result of trial counsel’s failure to exercise peremptory challenges,
the jury panel contained at least one juror who was biased.” (citing United States v.
Quintero-Barraza, 78 F.3d 1344, 1349 (9th Cir. 1995))). Other than alleging a
personal history that is significant for rape, Perkins has not demonstrated that V.H.
was biased against him – either actually or implicitly.
131
Therefore, Perkins is not entitled to relief based on this ineffective-assistance
claim. He has not shown that trial counsel were constitutionally ineffective for failing
to strike V.H.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or that it applied law contrary to
established United States Supreme Court precedent or in a manner that was
objectively unreasonable in light of such precedent. Given these considerations, this
court cannot conclude that the Alabama Court of Criminal Appeals unreasonably
applied, or reached a decision contrary to, clearly established federal law. Therefore,
Perkins is not entitled to habeas relief on this ground.
3. Failure to Request a Limiting Instruction
Perkins contends that his counsel was ineffective because they failed to request
jury instructions limiting the jury’s consideration of “the extensive collateral-act
evidence presented by the State.” (Doc. 1 ¶ 198.) He alleges:
199. At the guilt phase of Perkins’s trial, the State presented
evidence, over repeated defense objections, that Perkins had committed
two rapes in the weeks leading up to the abduction and killing of Cathy
Gilliam. . . .
132
200. In closing arguments, defense counsel emphasized that the
State was seeking [to] use the collateral evidence for the impermissible
use of proving that Perkins had bad character – and therefore he must
have possessed the intent[ ] required for capital murder, including the
intent to kill Cathy Gilliam. Counsel argued: “[T]hey want to try him,
again, on [the collateral cases] because they want you to see what a bad
person he is.” [(Doc. 10, Vol. 15, Tab 22 at 2634.)] Counsel then
argued:
You’re not asked to find him guilty of what he did to
[D.W.] You’re not asked to find him guilty of what he did
to [B.P.] Those cases are over. . . . You’re asked to find
him guilty of capital murder. All the elements that that
involves, the intent to kill and the intent to commit sexual
assault on her.
[(Id.)] Counsel continued, “The State has come in here and they’ve
proved to you that Roy Perkins committed other offenses, that Roy
Perkins is a bad man, that Roy Perkins is serving a ninety-nine year
sentence but not, not that he committed capital murder on this incident
on Cathy Gilliam.” [(Id., Vol. 16 at 2645.)] Finally, counsel argued,
“They bring [the collateral evidence] to try to make you upset and angry
with Roy Perkins because they can’t show you by the evidence that he
did this.” [(Id. at 2656.)]
201. Although Perkins’s counsel had tried to exclude the
collateral-act evidence prior to and during trial and argued that the State
was misusing it, they failed to request that the court instruct the jury as
to the limited purpose of the evidence. As a result, the jury’s
consideration of the evidence at the guilt phase was unrestricted. In
addition, because the prosecution incorporated all of its evidence from
the guilt phase at the penalty phase, [(Id., Vol. 16, Tab 23 at 2676-77)],
the jury’s consideration of the collateral-act evidence was unrestricted
at the penalty phase as well.
202. In his Rule 32 proceedings in state court, Perkins argued that
his counsel were ineffective for failing to request a limiting instruction.
133
Both attorneys testified at the Rule 32 hearing that they did not have a
strategic reason not to request a limiting instruction. [(See id., Vol. 63
at 200 (Steverson); id., Vol. 64 at 424-25 (Smith).)]
203. The Alabama Court of Criminal Appeals held that counsel
were not ineffective. It reasoned as follows:
The trial record shows that counsel was aware that
he had a right to a limiting instruction on the use of the
collateral-act evidence – if he requested one. [(Id., Vol. 11,
at 1705.)] This issue was discussed several times during
Perkins’s trial. Steverson testified at the evidentiary
hearing that, although he was unsure, he thought they
“made a decision not to ask for a limiting instruction.”
([Id., Vol. 63 at] 233.) Counsel did indicate that in
hindsight, he thought he should have requested the limiting
instruction.
During closing argument defense counsel argued
that the State failed to prove that Perkins had the intent to
commit capital murder. Counsel argued that the only
evidence presented by the State was that Perkins had been
charged with two other rapes, that the State had dismissed
one of those charges, and that the jury should not convict
Perkins based on an unrelated conviction. It appears that
counsel made a strategic decision not to request a limiting
instruction on the use of the collateral-act evidence – an
instruction that would have emphasized that Perkins’s
collateral bad acts were admissible to prove his intent.
...
Here, in closing arguments, counsel used the prior
bad act evidence to “bolster [Perkins’s] defense.” See
Commonwealth v. Delong, 60 Mass. App. Ct. 122, 131,
799 N.E.2d 1267, 1276 (2003). This Court agrees with the
circuit court that Perkins failed to meet his burden of
134
establishing that counsel was ineffective under Strickland.
The record supports the circuit court’s conclusion that
counsel made a strategic decision not to request a limiting
instruction; therefore, the circuit court did not abuse its
discretion by denying relief.
Perkins v. State, [144 So. 3d at 478, 480].
204. The state court’s decision constitutes an unreasonable
determination of the facts in light of the evidence in the record, see 28
U.S.C. 2254(d)(2), and an unreasonable application of Strickland, see
28 U.S.C. 2254(d)(1).
205. The state court’s factual error is objectively unreasonable.
The court asserted that counsel Steverson “testified at the evidentiary
hearing that, although he was unsure, he thought they ‘made a decision
not to ask for a limiting instruction.’ (R. 233.)” Perkins, [144 So. 3d at
478. The state court then asserted that “[i]t appears that counsel made
a strategic decision not to request a limiting instruction on the use of the
collateral-act evidence – an instruction that would have emphasized that
Perkins’s collateral bad acts were admissible to prove his intent.” Id.
Those findings are based on a mistaken and unreasonable interpretation
of the record.
206. When Steverson stated, “I think we made a decision not to
ask for a limiting instruction,” he was not referring to an instruction
regarding the guilt-phase collateral evidence. He was instead referring
to a prosecutor’s comment at a different time in Perkins’s trial. He
testified as follows regarding the instruction at issue in this claim:
Q:
. . . [D]o you actually remember . . . arguing to
the court not to allow the admission of the two [collateral]
rapes?
A:
Yes.
135
Q:
Okay. Why did you want to
admission of the two alleged rapes . . . ?
prevent
A:
Because that certainly was going to enhance
Mr. Perkins’[s] – the conviction of Mr. Perkins. It was
going to inflame the jury.
...
Q:
[When the 404(b) evidence was first presented
to the jury through witnesses and exhibits,] you did not
request a limiting instruction from the Court regarding
how the jury was to use and consider the 404(b) evidence.
Did you understand at the time that if you requested an
instruction that you were entitled to one?
A:
That I was entitled to one?
Q:
Yes.
A:
Yes.
Q:
. . . [D]o you recall having a strategic or
tactical reason for not asking for a limiting instruction on
the 404(b) rape evidence when this evidence was first
introduced?
A:
No, I don’t.
...
Q:
[Before the case was submitted to the jury for
guilt phase deliberations,] you also did not request a
limiting instruction regarding all the 404(b) evidence. At
that time, do you recall having any strategic or tactical
reason for not asking for an appropriate limiting instruction
on the rape evidence . . . ?
136
A:
No, I don’t recall.
Q:
. . . [T]he assistant district attorney[] moved all
the evidence from the guilt phase into the penalty phase.
Do you recall at that point any strategic or tactical reason
you may have had for not asking for a limiting instruction
about how the jury was to use that 404(b) rape evidence .
..?
A:
No.
[(Doc. 10, Vol. 63 at 198-201.)] Thus, Steverson did not testify
regarding this matter that he “made a decision not to ask for a limiting
instruction.” Perkins, [144 So. 3d at 478]. He testified that he did not
remember any decision-making process or any reason not to ask for the
instruction.
207. The testimony quoted by the state court came when
Steverson was being questioned on a separate issue. While on the
witness stand, Steverson had been given pages 2943 through 2950 of the
trial transcript. [(See doc. 10, Vol. 63 at 232.)]
208. In the exchange transcribed on those pages, defense counsel
moved for a mistrial at the close of the penalty phase. They did so based
on the prosecution’s comment in its penalty phase opening statement
that the alleged victim in Perkins’s prior second-degree rape case, which
had been offered to establish an aggravating circumstance, [(id., Vol. 2,
Tab 3 at 348)], was a “mentally deficient fourteen year old,” [(id., Vol.
17, Tab 28 at 2776)]. The prosecution responded that a mistrial would
be inappropriate in part because defense counsel had not even asked for
a “limiting instruction[]” regarding the prosecution’s comment. [(Id.,
Tab 31 at 2944.)] By “limiting instruction[],” the prosecution meant
“curative instruction,” which the trial court quickly clarified. [(Id. at
2945.)]
209. When Steverson reviewed those pages at the Rule 32
hearing and addressed that exchange, he said, “Now, I have to go back,
137
because when I look at the transcript . . . even when the judge talks
about a limiting instruction, I think we made a decision not to ask for
a limiting instruction.” [(Id., Vol. 63 at 233.)] Read in context, that
statement unquestionably concerned a curative instruction regarding the
prosecution’s improper comment about the second-degree rape
case—which occurred during the prosecution’s penalty phase opening
statement. Steverson’s quoted testimony had nothing to do with a
limiting instruction regarding the collateral evidence presented at the
guilt phase.
210. By concluding that counsel made a strategic decision not to
request a limiting instruction concerning collateral evidence based on
testimony about a different subject, the state court made an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2).
211. The state court’s ruling that Perkins’s counsel were not
deficient is also an unreasonable application of Strickland because
counsel could not have made a reasonable strategic decision not to
request a limiting instruction given the circumstances. See 28 U.S.C. §
2254(d)(1).
212. Since long before Perkins’s trial, Alabama law has
recognized the extreme dangers of collateral-act evidence. As
Alabama’s courts stated repeatedly in the 1980s and early 1990s:
[The general rule excluding collateral-act evidence] is
simply an application of the character rule which forbids
the state to prove the accused’s bad character by particular
deeds. The basis for the rule lies in the belief that the
prejudicial effect of prior crimes will far outweigh any
probative value that might be gained from them. Most
agree that such evidence of prior crimes has almost an
irreversible impact upon the minds of the jurors.
Ex parte Arthur, 472 So. 2d 665, 668 (Ala. 1985) (quoting Charles W.
Gamble, McElroy’s Alabama Evidence § 69.01(1) (3d ed. 1977)); see
also, e.g., Ex parte Smith, 581 So. 2d 531 (Ala. 1991) (same quote and
138
reversing conviction); Ex parte Cofer, 440 So. 2d 1121, 1123 (Ala.
1983) (same quote and reversing conviction). The reality that
collateral-act evidence “has almost an irreversible impact upon the
minds of the jurors” is reflected not only in Alabama case law, but also
in the most widely used evidence treatise in Alabama. See Gamble,
supra, at § 69.01(1).
213. Because Alabama law permits collateral-act evidence in
certain circumstances, it provides an important safeguard – limiting
instructions – to reduce the dangers described above. When a party is
permitted to present collateral-act evidence, the opposing party is
entitled to an instruction to the jury stating that the collateral-act
evidence is relevant only for a specific purpose and is not relevant for
other purposes, such as to show that the defendant has bad character.
See King v. State, 521 So. 2d 1360 (Ala. Crim. App. 1987). Limiting
instructions are considered effective in Alabama, as jurors are presumed
to follow them. See Johnson v. State, 612 So. 2d 1288, 1299 (Ala.
Crim. App. 1992)(“The law presumes that jurors follow their
instructions.”); First Bank of Childersburg v. Florey, 676 So. 2d 324,
331(Ala. Civ. App. 1996)(holding that a limiting instruction cured an
error in the admission of collateral evidence). Like the dangers of
collateral-act evidence, the availability of limiting instructions was well
known among Alabama attorneys at the time of Perkins’s trial. In fact,
the State conceded at trial that Perkins was entitled to a limiting
instruction if his counsel requested one. [(See doc. 10, Vol. 11, Tab 16
at 1704-05.)]
214. In light of the dangers of collateral-act evidence, the
availability of limiting instructions, and counsel’s approach to the
collateral-act evidence, counsel could not have made a reasonable
strategic decision not to seek a limiting instruction in this case. A
limiting instruction would have supported the defense’s position.
Counsel argued that the jurors should not find that Perkins committed
capital murder simply because they thought he was a “bad person,” [(id.,
Vol. 145, Tab 22 at 2634)]; a limiting instruction would have supported
that argument. Counsel argued that the jurors should not find that
Perkins committed capital murder because they had an emotional
139
response to the collateral acts, [(id., Vol. 16 at 2656)]; a limiting
instruction would have supported that as well. The fact that counsel
sought to diffuse the collateral act evidence in a way that would have
been supported by a limiting instruction from the court demonstrates
that any decision not to seek a limiting instruction would have been
objectively unreasonable. See Wiggins v. Smith, 539 U.S. 510, 536
(2003)(holding under AEDPA that counsel’s failure to pursue a certain
line of investigation was unreasonable because counsel had “had every
reason” to pursue that line of investigation given their strategy);
Williams v. Allen, 542 F.3d 1326, 1340 (11th Cir. 2008)(“Given that
counsel’s sentencing case focused on establishing that Williams had a
troubled background, they had every incentive to develop the strongest
mitigation case possible.”). The fact that counsel also did not request
a limiting instruction at the penalty phase only further demonstrates that
counsel’s failure was unreasonable.
215. For all the reasons set forth above, Perkins’s counsel
performed deficiently, and the state court’s decision to the contrary was
an unreasonable application of Strickland. Because the state court did
not address prejudice, this Court must conduct de novo review of that
issue. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“Because the
state courts found the representation adequate, they never reached the
issue of prejudice, and so we examine this element of the Strickland
claim de novo . . . .”).
216. Counsel’s failure to request a limiting instruction was
prejudicial for the precise reason courts view collateral evidence as so
dangerous – it had “an irreversible impact upon the minds of the
jurors.” Ex parte Arthur, 472 So. 2d at 668. This was not a case in
which the collateral evidence was fleeting or impassive; the collateral
evidence dominated Perkins’s trial in a dramatic and emotional way.
The victims provided graphic descriptions of the collateral rapes, and
investigators and medical personnel testified extensively about physical
evidence and rape kits. As defense counsel stated, “[i]t was almost like
we were trying those cases,” not the capital murder case. [(Doc. 10,
Vol. 64 at 422.)]
140
217. In cases like this one, where collateral evidence
overwhelmed the trial and defense counsel failed to request a limiting
instruction to prevent jurors from misusing that evidence, courts have
found prejudice under Strickland. The defining feature of these cases
is that the collateral evidence was extensive and emotional. See
Commonwealth v. Billa, 555 A.2d 835, 843 (Pa. 1989) (granting a new
trial where counsel failed to request a limiting instruction concerning
collateral evidence that was “extensive and inflammatory”); Ex parte
Aguilar, No. AP-75526, 2007 WL 3208751, at *14 (Tex. Crim. App.
Oct. 31, 2007) (“[I]n most cases, counsel’s failure to request limiting
instructions might not constitute ineffective assistance. In the present
case, however, it was tantamount to ignoring the proverbial 800-pound
gorilla in the room.”). Given the dominant role of the collateral-act
evidence in Perkins’s trial, the lack of guidance provided to the jury
about the limited purpose of the evidence prejudiced Perkins. A limiting
instruction would have ensured that the inherently prejudicial collateral
evidence did not overpower the jury, altering the whole picture of the
evidence and creating a reasonable probability of a different result.
Counsel’s deficient performance was prejudicial under Strickland.
Therefore, Perkins is entitled to relief under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
(Id. ¶¶ 199-217 [emphasis in original].)
The Rule 32 court held:
Trial counsel made a strategic decision not to request a limiting
instruction regarding the introduction of collateral bad act evidence.
The closing arguments of Mr. Smith and Mr. Steverson fully explained
the burden of proof and the limited use of the prior conviction, and made
use of the evidence in a manner they reasonably thought could be of
value to the Petitioner. There is no evidence a limiting instruction from
the court would have impacted the jury decision in any manner.
(Doc. 10, Vol. 56, Tab 135 at 4493.) The Alabama Court of Criminal Appeals
affirmed the decision. Perkins, 144 So. 3d at 478-80.
141
As set forth above, a petitioner seeking to vacate his conviction based on
ineffective trial counsel must prove both that counsel’s performance was deficient
and that their deficient performance prejudiced the petitioner. Chandler, 218 F.3d at
1313. “Unless a defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process that renders the
result unreliable.” Strickland, 466 U.S. at 687.
Under § 2254(d)’s “unreasonable application” clause, a federal habeas
court may not issue the writ simply because that court concludes in its
independent judgment that the state-court decision applied Strickland
incorrectly. Rather, it is the habeas applicant’s burden to show that the
state court applied Strickland to the facts of his case in an objectively
unreasonable manner. An “unreasonable application of federal law is
different from an incorrect application of federal law.”
Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002).
As to Perkins’s claim that his trial counsel were ineffective for failing to ask
for a limiting instruction, the court finds the Alabama court’s decision, that Perkins’s
counsel were not constitutionally ineffective, was reasonable.
The court applies a presumption that trial counsel’s conduct “might be
considered sound trial strategy.” Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
142
conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action “might be considered sound trial strategy.”
Id.
“[T]he decision not to request a limiting instruction is solidly within the
accepted range of strategic tactics27 employed by trial lawyers in the mitigation of
damning evidence. If the lawyer cannot stop the evidence from being admitted, it is
perfectly rational to decide not to draw further attention to it by requesting a motion
for limiting instruction.” United States v. Gregory, 74 F.3d 819, 823 (7th Cir.
1996)(citing Biggerstaff v. Clark, 999 F.2d 1153, 1155 (7th Cir. 1993)). Citing to
testimony that Stevens could not recall a strategic reason for not asking for a limiting
instruction, Perkins argues that the state court’s factual determination that the failure
to ask for a limiting instruction was a strategic decision was unreasonable. The court
disagrees.
The decision not to request a limiting instruction is “presumed” to be sound
trial strategy. See Burt v. Titlow, 571 U.S. 12, 23 (2013)(“It should go without saying
27
“[A] strategic decision is a ‘conscious, reasonably informed decision made
by an attorney with an eye to benefitting his client.’” Cox v. Donnelly, 387 F.3d 193,
198 (2d Cir. 2004)(quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001)).
143
that the absence of evidence cannot overcome the ‘strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional assistance.’”)(quoting
Strickland, 466 U.S. at 689). As the Eleventh Circuit has noted:
The relevant question under Strickland’s performance prong, which calls
for an objective inquiry, is whether any reasonable lawyer could have
elected not to object for strategic or tactical reasons, even if the actual
defense counsel was not subjectively motivated by those reasons. See
Chandler v. United States, 218 F.3d 1305, 1315 & n.16 (11th Cir. 2000)
(en banc)(explaining that “[t]he reasonableness of a counsel’s
performance is an objective inquiry,” which asks “whether some
reasonable lawyer could have conducted the trial in that manner” and
requires a petitioner to show that “no competent counsel would have
taken the action that his counsel did take”); accord Harrington v.
Richter, [562] U.S. [86, 110], 131 S. Ct. 770, 790, 178 L. Ed. 2d 624
(2011)(“Strickland . . . calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state
of mind.”).
Castillo v. Fla., Sec’y of Dept. of Corrections, 722 F.3d 1281, 1285 n.2(11th Cir.
2013). Therefore, “[a]lthough courts may not indulge ‘post hoc rationalization’ for
counsel’s decisionmaking that contradicts the available evidence of counsel’s actions,
neither may they insist counsel confirm every aspect of the strategic basis for his or
her actions.” Harrington, 562 U.S. at 109 (citing Wiggins v. Smith, 539 U.S. 510,
526-27 (2003)).
144
Counsel’s testimony, that they do not remember what their strategy was, does
not overcome this presumption – especially in light of counsel’s testimony that they
knew they were entitled to a limiting instruction if requested.
. . . [I]n habeas proceedings, unlike direct appeals, the petitioner
bears the burden of establishing his right to relief; [petitioner] must
prove the facts necessary to demonstrate his counsel’s performance was
constitutionally defective. See Jones v. Walker, . . ., 540 F.3d 1277,
[1292]-93; Romine [v. Head], 253 F.3d [1349,] 1357 [(11th Cir. 2001)].
Because of this burden, when the evidence is unclear or counsel cannot
recall specifics about his actions due to the passage of time and faded
memory, we presume counsel performed reasonably and exercised
reasonable professional judgment. Romine, 253 F.3d at 1357-58;
Williams v. Head, 185 F.3d 1223, 1227 (11th Cir. 1999).
Blankenship v. Hall, 542 F.3d 1253, 1274 (11th Cir. 2008). “An ambiguous or silent
record is not sufficient to disprove the strong and continuing presumption of effective
representation. Therefore, ‘where the record is incomplete or unclear about counsel’s
actions, we will presume that he did what he should have done, and that he exercised
reasonable professional judgment.’” Grayson v. Thompson, 257 F.3d 1194, 1218
(11th Cir. 2001)(quoting Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th
Cir.2000)(quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir.1999)))(internal
quotations omitted). “The mere absence of the instruction neither overcomes this
presumption nor satisfies [petitioner’s] burden to show deficient performance.”
145
Thomas v. Vannoy, 651 Fed. Appx. 298, 303 (5th Cir. 2016)(citing Burt, 571 U.S. 12,
22-23 (2013))(footnote omitted).
Moreover, the decision not to request a limiting instruction is generally a
reasonable strategic decision because such an instruction –
effectively informs the jury, right before deliberations, about the most
damning inference they could draw from [the limited purpose evidence.
As Judge Easterbrook has explained: “You can’t instruct ‘Do not draw
inference X’ without informing the jurors that X is one possible
conclusion from the evidence. To tell jurors not to do something is to
ensure they will do it, at least for a while. . . . [R]easonable persons
may differ about whether the good such an instruction does with a
thoughtful juror will outweigh the harm it can do by fastening attention
on a link that may have been overlooked or forgotten.” United States v.
Myers, 917 F.2d 1008, 1010-11 (7th Cir. 1990).
Vannoy, 651 Fed. Appx. at 303; see also United States v. Gregory, 74 F.3d 819, 823
(7th Cir. 1996)(“Indeed, the decision not to request a limiting instruction is solidly
within the accepted range of strategic tactics employed by trial lawyers in the
mitigation of damning evidence. If the lawyer cannot stop the evidence from being
admitted, it is perfectly rational to decide not to draw further attention to it by
requesting a motion for limiting instruction.”); Williams v. Armontrout, 912 F.2d 924,
934 (8th Cir. 1990)(“the decision not to request [a limiting instruction on the other
crimes evidence] was a reasonable, strategic choice designed to avoid highlighting
[defendant’s] other undesirable activities”).
146
This court finds that the state court’s determination with regard to the
performance prong of this ineffective assistance claim was not “so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at
103. Therefore, Perkins’s claim for relief based on counsel’s failure to request a
limiting instruction will be denied.
Also, in this case, the failure to request a limiting instruction did not prejudice
Perkins. Because the evidence of the rapes of D.W. and B.P. were admissible to
prove motive and intent necessary to prove kidnapping in the first degree, a limiting
instruction telling the jury that they could not use the evidence to prove propensity
would have made little or no difference in the outcome of Perkins’s trial and/or
sentence.
Generally, a limiting instruction that is given when evidence is admitted for a
specific purpose follows this format: First, the jury is told that the evidence was
admitted for a particular and limited purpose and that it can be considered by the jury
for that purpose – as proof of the specific element, such as motive or intent. Second,
the jury is told the purpose it cannot consider that evidence to prove – such as
whether defendant committed the crime alleged in the indictment. See 1 Ala. Pattern
Jury Instr. Civ. 15.08 (3d ed.)(“Some of the evidence in this case is admitted for a
147
limited purpose. The evidence (describe the evidence) is admitted only for (describe
the purpose). You cannot consider it (describe what it cannot be used for). You will
consider this evidence with the rest of the evidence, but only for the purpose it was
admitted.”); see also1A Fed. Jury Prac. & Instr. § 17:08 (6th ed.);28 Pattern Crim. Jury
28
The following federal pattern limiting instruction is to be used when Rule
404(b) evidence offered is to prove knowledge or intent:
Evidence that an act was done or that an offense was committed
by Defendant ____ at some other time is not, of course, any evidence or
proof whatever that, at another time, the defendant performed a similar
act or committed a similar offense, including the offense charged in
[Count ____ of] this indictment.
Evidence of a similar act or offense may not be considered by the
jury in determining whether Defendant _____ actually performed the
physical acts charged in this indictment. Nor may such evidence be
considered for any other purpose whatever, unless the jury first finds
beyond a reasonable doubt from other evidence in the case, standing
alone, that Defendant _____ physically did the act charged in [Count
_____ of] this indictment.
If the jury should find beyond a reasonable doubt from other
evidence in the case that Defendant _____ did the act or acts alleged in
the particular count under consideration, the jury may then consider
evidence as to an alleged earlier act of a like nature in determining the
state of mind or intent with which Defendant _____ actually did the act
or acts charged in the particular count.
The defendant is not on trial for any acts or crimes not alleged in
the indictment. Nor may a defendant be convicted of the crime[s]
charged even if you were to find that [he] [she] committed other crimes
– even crimes similar to the one charged in this indictment.
148
Instr. 11th Cir. S4.1 (2016)(“During the trial, you heard evidence of acts allegedly
done by the Defendant on other occasions that may be similar to acts with which the
Defendant is currently charged. You must not consider any of this evidence to decide
whether the Defendant engaged in the activity alleged in the indictment. This
evidence is admitted and may be considered by you for the limited purpose of
assisting you in determining whether [the Defendant had the state of mind or intent
necessary to commit the crime charged in the indictment] [the Defendant had a
motive or the opportunity to commit the acts charged in the indictment] . . . .”).
In this case, the evidence was not disputed that Perkins had abducted Mrs.
Gilliam; however, his intent and motive for taking Mrs. Gilliam was disputed.
Evidence that Perkins had abducted and raped two women in the days preceding the
abduction of Mrs. Gilliam was offered to prove why he had abducted Mrs. Gilliam
and what he intended to do with her when he abducted her. Therefore, a limiting
instruction would have informed the jury that they could consider the evidence that
Perkins had kidnapped and raped two women just days before he took Mrs. Gilliam
to prove he intended to rape or sexually abuse Mrs. Gilliam. Because the evidence
was admitted for this substantive purpose, the jury would be specifically instructed,
in essence, that they could consider the evidence of the rapes of D.W. and B.P. for the
purpose of proving that Perkins intended to do the same thing to Mrs. Gilliam and
149
that was his reason for taking her. See, e.g., United States v. McNeal, 591 Fed. Appx.
760, 764 (11th Cir. 2014)(Jury instructed “that, if other evidence convinced them
beyond a reasonable doubt that [defendant] had committed the charged acts [of drug
possession with intent to distribute], they could consider the prior [drug trafficking]
convictions for intent, motive, opportunity, plan, preparation, or identity, or to
determine whether the acts were committed accidentally.”). As for the second part
of the limiting instruction, the jury would be told that they could not consider the
evidence for the purpose of finding Perkins was a bad person and/or that they should
punish him for his raping D.W. and B.P. See, e.g., id. (Jury instructed “not to use the
prior convictions to determine whether [defendant] committed the charged acts.”).
Under the circumstances of this case, this distinction between evidence of intent and
evidence of propensity does not seem so great as to support a finding by this court
that, had it been instructed on the difference, the jury might possibly have returned
a different verdict or sentence.
The state court found no such possibility of a different result. This court finds
that the state court’s determination with regard to the prejudice prong of this
ineffective assistance claim was not “so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
150
fairminded disagreement.” Harrington, 562 U.S. at 103. Therefore, Perkins’s claim
for relief based on counsel’s failure to request a limiting instruction will be denied.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
4. Failure to Investigate and Present Available Mitigating Evidence
In his Petition, Perkins contends that his “trial counsel were ineffective for
failing to investigate and present available mitigating evidence in a reasonable
manner.” (Doc. 1 ¶ 245.) In support of this claim, he alleges:
246. Perkins’s trial counsel called three witnesses at the penalty
phase of the capital trial: Kathleen Snow, Perkins’s paternal aunt; Ed
Owens, a social worker; and Dr. John Goff, a clinical psychologist.
247. Snow testified that Mr. Perkins grew up in a poor family,
[(doc. 10, Vol. 17, Tab 31 at 2807)], and received little parental support,
[(id. at 2797-98)]. She also testified that Perkins’s stepfather, Junior
151
Trawick, sexually abused Perkins’s sister, [(id. at 2798-99)], and that
Perkins told her that when he was seven, he was sexually abused, [(id.
at 2820-21)]. However, that testimony was undermined on crossexamination because Snow had no firsthand knowledge of the horrors
that Perkins experienced and witnessed as a child. Asked if she went to
Perkins’s childhood home often, Snow replied, “No, sir, not really.”
[(Id. at 2816.)] Asked if Perkins went hungry as a child, Snow replied,
“I imagine he did.” [(Id. at 2808.)] Asked if she witnessed the sexual
abuse of Perkins’s sister, Snow replied, “No, sir.” [(Id. at 2817.)]
Asked if Perkins witnessed the sexual abuse of his sister, Snow replied,
“I couldn’t swear that he saw this.” [(Id. at 2801.)]
248. Owens testified that he attempted to compile a social history
of Perkins. [(Id. at 2827.)] He explained that he interviewed Perkins
and spoke by telephone with Perkins’s paternal grandmother and two of
Perkins’s paternal aunts, including Snow. [(Id., Vol. 63 at 303.)] He
also reviewed “some medical records [and] records from the court
system” that Perkins’s trial counsel had provided to him. [(Id., Vol. 17,
Tab 31 at 2828.)] He testified that Perkins grew up with little parental
support, [(id. at 2833)]; that there was “pretty extensive alcohol abuse”
in Perkins’s family, [(id. at 2832)]; and that Perkins “alleged . . .
violence toward his sister,” [(id. at 2831)]. But since Owens did not
interview any firsthand witnesses to Perkins’s childhood home life, he
was forced to take the position, with regard to every key fact to which
he testified, that he did not have “positive verification that that
happened.” [(Id.)] Owens also provided very little in terms of
explaining the significance of Perkins’s childhood trauma. Defense
counsel asked Owens: “Would [witnessing the sexual abuse of his
sister] have an effect on him?” [(Id. at 2835.)] Owens replied, “Yes, it
would,” [(id)], but he offered no explanation as to what those effects
would have been or why they were relevant to the jury’s life and death
decision. Finally, Owens provided the jurors with reasons to sentence
Perkins to death: he said that Perkins had very little “empathy,” “social
[conscience],” or “sense of right and wrong.” [(Id. at 2833.)] Perkins’s
trial counsel later called those characterizations “killing words.”29 [(Id.,
29
During the Rule 32 hearing, the following exchange occurred between
152
Perkins’s trial counsel and his state habeas counsel:
Q Okay. Were you – well, were you ultimately satisfied with
Mr. Owens performance as a mitigation investigator?
A No.
Q Why not?
A . . . I know he made, at least according to his billing records,
a trip to Fayette County and to northern Tuscaloosa County and talked
to some family members and I think maybe talked to some family
members in Northport of Mr. Perkins. I think he could have done more
along that line and should have done more along that line. It was – but
the main problem was the presentation in the courtroom. I think the
language that he used was not what we expected, and, in fact, may have
hurt more than it helped in terms of the penalty phase.
Q The language that you’re referring to in his testimony, is that
when Mr. Owens said, yeah, Mr. Perkins had a tough childhood and
because of that, you know, he has no empathy, social conscience or
morality?
A Yes, I think he did say that or almost those exact words. Mr.
Perkins did have a horrible childhood, and I don’t think maybe he
emphasized that enough. And – but the way he explained what effect
that would have wasn’t what we were expecting or hoped for.
Q You had no idea that he was going to say, you know, because
of this horrible childhood, you know, the effect that it would have on
him is it would make him a person without morality, without empathy
and without a social conscience?
A No.
Q In your opinion, are those killing words or are those mitigating
153
Vol. 64 at 436.)]
249. Goff testified that Perkins had alcohol dependency and
borderline personality disorder. [(Id., Vol. 17, Tab 31 at 2868.)] He
stated that although Perkins had a tendency to “blow . . . off” his
traumatic childhood, it was “pretty horrible.” [(Id. at 2876.)] But like
Owens, Goff had not spoken with any firsthand witnesses to Perkins’s
childhood at home besides Perkins. He qualified his discussion of
factual matters by stating that certain events “apparently” or
“reported[ly]” occurred. [(Id. at 2877.)] No additional mitigating
evidence was presented on behalf of Perkins at trial.
250. At the Rule 32 evidentiary hearing in state court, Perkins
presented evidence concerning his trial counsel’s performance as well
as mitigating evidence that his trial counsel could have presented but did
not.
251. Trial counsel, neither of whom had defended a capital case
before, did not conduct the mitigation investigation. Instead, they
delegated that responsibility to Owens. [(Id., Vol. 64 at 432-33.)]
Owens spent just seventeen hours investigating: two hours interviewing
Perkins, three hours interviewing three of Perkins’s paternal relatives,
four hours reviewing documents, and eight hours, including travel time,
seeking additional sources. [(Id., Vol. 61 at 5533 (Owens’s fee
declaration).)] After sixteen of those seventeen hours, there were still
three months until Perkins’s trial. But Owens stopped his investigation.
252. Trial counsel provided no supervision for Owens, who was
not clear as to what he was supposed to do. Trial counsel knew that
Owens, who was not their “first choice for the job,” [(id., Vol. 64 at
factors?
A. Well, as I said, I think his testimony went – it hurt more than
it helped. I think that it’s more, as you would say, killing words.
(Doc. 10, Vol. 64 at 434-36.)
154
433)], had no prior experience conducting a mitigation investigation,
[(id. at 434)]. Nonetheless, they met with him just twice prior to trial.
[(Id., Vol. 63 at 293, 308.)] At the first meeting, which was three-and-ahalf months before trial, counsel gave Owens “some medical records
[and] records from the court system.” [(Id., Vol. 17, Tab 31 at 2828; id.,
Vol. 63 at P.R. 293.)] Trial counsel did not suggest that Owens obtain
any additional documents, [(id., Vol. 63 at 293-94)], and they did not
provide Owens with any mitigation manuals or guidelines, [(id. at 289)].
At the second meeting, which took place three days before the trial
began and lasted one hour, Owens provided trial counsel with the first
and only version of his report. [(Id. at 308-10; id., Vol. 60 at 5533.)]
253. At the Rule 32 hearing, trial counsel acknowledged that
Owens performed inadequately as a mitigation investigator, [(id., Vol.
64 at 434)], stating that Owens “should have done more,” [(id. at 435)].
However, trial counsel did not ask Owens to do more. They never asked
Owens to spend more time looking for witnesses or requesting records,
[(id., Vol. 63 at 293-94, 305-06)], they never spoke with Owens about
his report until he submitted the final version, [(id. at 310)], and they
never explained to Owens “the theory of mitigation” in the case, [(id. at
290)]. Even when Owens asked trial counsel for information, trial
counsel failed to respond. [(Id. at 308.)] Owens testified at the Rule 32
hearing that he assumed that if there was more to do, trial counsel would
have told him to do it, especially since they knew that this was his first
mitigation investigation. [(Id. at 294-95.)]
254. Goff’s experiences were similar to Owens’s. He asked trial
counsel for assistance repeatedly and received none. At the Rule 32
hearing, he authenticated two letters that he wrote to trial counsel prior
to Perkins’s capital trial. [(Id. at 345-46.)] In the first, he complained
about the lack of collateral information that he had received. [(Id., Vol.
65 at 175.)] In the second, he complained that given the time constraints
imposed by the prison on his visit with Perkins, he might not be able to
finish his evaluation. [(Id. at 176.)] Counsel did nothing to alleviate
Goff’s concerns. Goff never received sufficient collateral information,
[(id., Vol. 63 at 340)], and as he feared, he did not complete his
evaluation of Perkins, [(id. at 351-52)]. Asked if he was able to provide
155
adequate services in this case, Goff replied, “Absolutely not.” [(Id. at
355.)]
255. As a result of their lack of communication, trial counsel did
not know what Owens and Goff intended to say in their testimony prior
to calling them. Smith, the attorney who examined Owens at trial,
testified at the Rule 32 hearing that he had “no idea” that Owens was
going to say that Perkins failed to develop morality, empathy or a social
conscience on account of his dysfunctional childhood. [(Id., Vol. 64 at
435-36.)] Thus, Smith elicited what he later called “killing words” from
his own witness. [(Id. at 436.)] For his part, Owens testified at the Rule
32 hearing that he would have been willing to explain how growing up
in an environment defined by sexual abuse would have affected a person
like Perkins, but trial counsel never asked him to do so. [(Id., Vol. 63
at 316.)]
256. Perkins presented, at the Rule 32 hearing, the firsthand,
corroborated evidence that his trial counsel failed to present. Perkins’s
sister, Kathy Hocutt, offered graphic evidence concerning Perkins’s
childhood life at home. [Footnote 57] Her testimony was not
speculative, or qualified with words such as “apparently” or
“reportedly.” She was a firsthand witness to the events she described.
She testified:
Roy and I grew up surrounded by violence, sexual abuse,
alcohol and drug abuse, and poverty. We were beaten. We
had knives thrown at us. We were shot at. At times we had
to run into the woods to prevent our own step-father from
killing us. And from the time Roy was 5 until he was
forced to leave home for good at age 11, he heard and saw
me being raped by my step-father. I don’t think that there
was one day when Roy and I were safe, or loved, or taken
care of.
[(Id., Vol. 60 at 5273-74.)] Hocutt explained that their mother and
Junior Trawick, their stepfather, “spen[t] all of the family’s money on
156
alcohol.” [(Id. at 5274.)] [Footnote 58] She then testified as to the
violence that ensued when Trawick drank:
When he was drunk, Junior . . . would beat Roy all the
time, and he beat my mother all the time. And for many
years, he raped and beat me on a regular basis. . . .
I remember one night my mother and Junior were
both drunk and they started fighting. Junior threw his knife
at my mother and it stuck in the wall right above my
mother’s head. Roy and I were really scared. Another night
. . . we saw Junior drag my mother from the living room
into their bedroom. Junior kept my mother on the floor and
tied her hands to the legs of the bed with a rope. Then
Junior started hitting my mother in the face with his fists.
. . . After Junior untied my mother, she and Roy and I went
and spent the night at Granny’s. No one ever talked about
what happened, we just sat down and started watching TV.
It was like nothing ever happened. . . .
When Junior started getting angry, Roy and I would
try to run away . . . into the woods. . . . I remember one
time when Roy was five years old that Roy couldn’t get
away from Junior. I saw Junior beat Roy badly with his
belt. Roy had big red stripes on his back where the belt had
bruised him and had even drawn blood. It took a long time
for the marks to go away. If we did get away from the
house . . . most of the time [Junior] shot at Roy and me
from the porch as we ran into the woods to hide. It was
really scary when he shot at us, and I was afraid he would
shoot me or Roy in the back as we were running away from
him. . . .
. . . Junior would hit Roy, throw knives at him, and
shoot at him.
157
[(Id. at 5274, 5279-82.)] Hocutt also testified about the sexual abuse
that occurred when Trawick drank:
[W]hen Junior was drunk he also raped me. For over ten
years when Roy and I were growing up, Junior raped me.
He raped me just about every time he got drunk which was
most nights. . . .
I remember the first time Junior raped me and I
remember seeing Roy watching it happen. . . . I was 8
years old at the time. Roy was 5 years old at that time.
Junior, Roy and I were all sleeping in the car . . . . Junior
and I were in the front seat and he raped me. I remember
Roy. He was in the back seat. He was looking over at me
in the front seat. I could see that he was crying. I don’t
remember if I put up a fight or screamed because I was so
young I didn’t even know what was happening. I didn’t
know what sex was.
[(Id. at 5282-83.)] Hocutt continued:
When Junior raped me, it hurt and he made me bleed. I
threw away my bloody panties, then stuffed toilet paper
inside me to stop the bleeding and put on new panties.
Almost every day, Roy would hear me yelling and
screaming as Junior raped me. There was nothing Roy
could do to stop Junior from raping me. He was just a little
boy. If Roy had ever tried to intervene, Junior would have
beaten Roy, threatened to kill him and kicked him out of
the house at gunpoint.
...
When Roy was about 12 years old, Roy came into
the house and he saw Junior on top of me, raping me. My
mother was passed out on the sofa in the living room. Roy
158
left and he called the police on Junior. Roy knew that
Junior would be very, very angry, but I think that Roy
didn’t care anymore what Junior was going to do to him.
I think he just wanted Junior to stop raping me.
So Roy called the police. . . . Junior told me that if
I told the police what he was doing to me, he would kill my
mother. He said he would cut off my mother’s head. . . .
. . . The police officers asked me if Junior was
abusing me. I told them that Junior was not abusing me.
I said there was nothing going on because I was scared and
I didn’t have anyone to help me understand.
. . . Roy was there when the police came and talked
to me. He was really mad when I lied to the police, but he
didn’t know that Junior told me that he would cut off our
mother’s head if I told anyone. I never got to explain it to
Roy.
[(Id. at 5285-87.)]
[Footnote 57:] Hocutt affirmed that she was living in Berry,
Alabama, at the time of Perkins’s trial, and that if anyone had
gone to interview her, she would have told them everything she
said in her Rule 32 testimony. [(Id. at 5289.)] [Rule 32 court
found, “it’s established for purposes of this record that Kathy
Hocutt says she wouldn’t have come to trial. At best, she would
have given an affidavit in the case.” (Id., Vol. 64 at 482.)]
[Footnote 58:] Hocutt explained the drinking: “Every day
when I came home from school, Junior would already be
drunk. . . . My mother usually drank one case of beer a
day. Junior usually drank one bottle of whiskey and a few
beers a day.” [(Id., Vol. 60 at 5275.)]
159
257. Finally, Hocutt explained the appalling poverty and
deprivation in which she and Perkins grew up. She testified: “Many
people in Berry, Alabama were poor, but we were the poorest people in
town.” [(Id. at 5276.)] Hocutt did not get a toothbrush until she was in
third grade, and she never had clean clothes. [(Id. at 5276-77.)] When
she and Perkins rode the bus to school, Hocutt testified, the other
students “would hold their noses when we walked by and they said we
stank.” [(Id. at 5277.)]
258. Perkins also presented numerous records at the Rule 32
hearing that provided corroborative and objective accounts of his
childhood. His school records demonstrate serious academic struggles.
See [(id, Vol. 56 at 4579-85] (elementary school records demonstrating
that while Perkins obtained grades of A, B, and C in conduct, he
obtained mostly grades of D and F in spelling, language and grammar,
social studies, science, and other substantive subjects). Records from
the Fayette County Juvenile Court document that his mother lived in
“what appears to be extreme poverty,” that his childhood home was
“little more than a shack,” and that “the inside of the home is ill kept
with dirty clothes[,] dishes and articles of every sort [strewn] around at
random,” [(id. at 4758)]. The criminal records of his stepfather,
Trawick, demonstrate Trawick’s violent tendencies. [(Id., Vol. 57 at
4723-37.)]
259. In addition, Perkins presented records from the Alabama
Department of Corrections. [(Id., Vol. 57 at 4778-4800, Vol. 58, Vol.
59 at 5001-53 (medical records); id., Vol. 59 at 5054-5200, Vol. 60 at
5201-32 (corrections records).)] Those documents demonstrate that
Perkins adjusted positively to life in prison when he was incarcerated
prior to the events that led to the capital case. In its reports, the
department noted that Perkins had “no history of institutional violence,”
[(id., Vol. 59 at 5083)], was “doing excellent work,” [(id. at 5113)], and
was “cooperative and polite” as an inmate, [(id. at 5069)].
260. Perkins also presented expert testimony at the Rule 32
hearing to explain what was never explained at trial: the effects of his
traumatic and horrific childhood. Dr. Susan Strickland, a clinical social
160
worker employed as a sex offender specialist by the Georgia Department
of Corrections, testified at the Rule 32 hearing. She explained that
children develop their future sexual behavior from “the values and the
interaction patterns that are going on around [them],” [(id., Vol. 64 at
518)], and where the patterns around them involve sexual trauma,
children “create or choose coping mechanisms that are readily available
or are easily attainable within their environment,” [(id. at 514-15)].
Strickland pointed out that early on, Perkins responded to the abuse he
suffered and witnessed by running to the woods. [(Id. at 515.)] As he
got older, he turned to disassociation through substance abuse, [(id. at
515-16)], which along with other risk factors exacerbated his unhealthy
sexual development, [(id. at 520-25)]. Strickland further explained that
while the effects of Perkins’s traumatic childhood would manifest
themselves with tragic consequences in society, they would not do so in
prison. Relying in part on Perkins’s prison records, [(see id., Vol. 57 at
4778-4800, Vol. 58, Vol. 59, and Vol. 60 at 5201-32)], she explained
that Perkins’s behavior in prison was positive, and likely would continue
to be positive, because prison provides the structure and constraints he
needs, [(id., Vol. 64 at 529-33)].
261. Perkins argued in the Rule 32 proceedings that his counsel
were ineffective under Strickland v. Washington, 466 U.S. 668 (1984),
because they failed to investigate and present available mitigating
evidence and that failure prejudiced the defense. The Alabama Court of
Criminal Appeals provided a description of counsel’s investigation and
the substantive evidence presented and held that counsel were not
ineffective. Perkins v. State, [144 So. 3d 457, 484-92] (Ala. Crim. App.
Nov. 2, 2012). It stated:
This Court has thoroughly reviewed both the mitigation
evidence presented at Perkins’s sentencing hearing and the
alleged omitted mitigation evidence and is confident that
the omitted mitigation was, in large part, cumulative to the
testimony that was presented at Perkins’s sentencing
hearing and would not have affected the jury’s
recommendation of death in this case.
161
Accordingly, this Court cannot say that counsel’s
actions were deficient or that Perkins suffered any
prejudice as a result of counsel’s actions. Id. at [491].
262. The state court’s ruling constitutes an unreasonable
application of clearly established federal law, see 28 U.S.C. §
2254(d)(1), and an unreasonable determination of the facts, see 28
U.S.C. § 2254(d)(2).
(Doc. 1 ¶¶ 246-62 and nn. 57-58 [footnote added; internal footnotes omitted except
as noted].)
The Alabama Court of Criminal Appeals held:
In sentencing Perkins to death, the circuit court found the
existence of three statutory aggravating circumstances: (1) that the
murder was committed during the course of a kidnapping, § 13A-549(4), Ala. Code 1975; (2) that the murder was committed while Perkins
was under a sentence of imprisonment, § 13A-5-49(1), Ala. Code 1975;
and (3) that Perkins had previously been convicted of [a] felony
involving the use or threat of violence to another person, § 13A-5-49(2),
Ala. Code 1975. As statutory mitigation, the circuit court found that
Perkins’s capacity to appreciate the criminality of his conduct was
substantially impaired, see § 13A-5-51(6), Ala. Code 1975. The circuit
court found the following nonstatutory mitigating circumstances to
exist:
“(1) that Perkins took Mrs. Gilliam to the Hood residence
after shooting her; (2) that Perkins was drinking and taking
drugs during the timeframe within which the offense was
committed; (3) that Perkins suffers from borderline
personality disorder, is of borderline intelligence, and
possibly has organic brain dysfunction; (4) that Perkins
was under some degree of mental or emotional disturbance,
although not an extreme degree; (5) that Perkins had a
traumatic childhood and lacked socialization; (6) that
162
Perkins’s IQ is 76; and (7) that Perkins’s family was
poverty-stricken when he was growing up.”
Perkins, 808 So. 2d at 1141-42.
This Court has thoroughly reviewed both the mitigation evidence
presented at Perkins’s sentencing hearing and the alleged omitted
mitigation evidence and is confident that the omitted mitigation was, in
large part, cumulative to the testimony that was presented at Perkins’s
sentencing hearing and would not have affected the jury’s
recommendation of death in this case. Wiggins v. Smith, 539 U.S. 510,
534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
Perkins, 144 So. 3d at 491.
As set forth above, a petitioner seeking to vacate his conviction based on
ineffective trial counsel must prove both that counsel’s performance was deficient
and that the deficient performance prejudiced the petitioner. Chandler, 218 F.3d at
1313. “Unless a [petitioner] makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland, 466 U.S. at 687. “Because both parts of
the test must be satisfied in order to show a violation of the Sixth Amendment, the
court need not address the performance prong if the [petitioner] cannot meet the
prejudice prong, or vice versa.” Holladay, 209 F.3d at 1248. In this case, Perkins has
not shown that he was prejudiced by counsel’s alleged errors in investigating and
163
presenting mitigating evidence; therefore the court pretermits discussion of whether
the alleged errors constituted deficient performance under Strickland.
“Under Strickland, a defendant is prejudiced by his counsel’s deficient
performance if ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Porter v. McCollum,
558 U.S. 30, 40 (2009)(quoting Strickland, 466 U.S. at 694). That is, a petitioner
“must show that[,] but for his counsel’s deficiency, there is a reasonable probability
he would have received a different sentence,” and “[t]o assess that probability, [the
court] consider[s] the totality of the available mitigation evidence – both that adduced
at trial, and the evidence adduced in the habeas proceeding – and reweigh[s] it against
the evidence in aggravation.” Id. at 41 (quoting Williams, 529 U.S. at 39798)(internal quotations omitted).
Perkins alleges that he was prejudiced by counsel’s failure to talk to his sister
and to present her testimony during the penalty phase of his trial. At the Rule 32
stage, Perkins filed the affidavit of his sister, Kathy Hocutt. The affidavit contains
the first-hand account of the horrifying childhood of Ms. Hocutt and Perkins, her
brother, including continuing violent sexual abuse by her stepfather, a neglectful
alcoholic mother, and extreme poverty and deprivation. Perkins argues that Ms.
Hocutt’s first-hand testimony “is significant because the three witnesses who testified
164
at [his penalty phase – Ms. Snow, Mr. Owens, and Dr. Goff –] admitted that they
[had] based their testimony[,] not on personal observations, but on reports from either
secondhand sources or from Perkins.” (Doc. 15 at 115 [citing doc. 10, Vol. 17, Tab
31 at 2966; id., Vol. 18, Tab 34 at 2981].) As previously noted, however, Ms. Hocutt
was unable to testify in person before the sentencing jury, (see doc. 10, Vol. 64 at
482); therefore, her testimony, by necessity, could only be presented secondhand by
her written statement, the admissibility of which was doubtful at the time of Mr.
Perkins’s trial, or through another person, whose testimony would be subject to
challenge as hearsay.
Even if Ms. Hocutt’s statements had been admitted and considered by the
sentencing jury and the trial judge, the weight of that evidence to mitigate Perkins’s
punishment is limited by the remoteness of the abuse and poverty suffered by Perkins
as a child to the adult Perkins’s murder of Mrs. Gilliam. See Anderson v. Sec’y, Fla.
Dep’t of Corr., 752 F.3d 881, 908 (11th Cir. 2014)(“Although evidence of sexual
abuse may constitute a mitigating circumstance, ‘[w]hen a defendant is several
decades removed from the abuse being offered as mitigation evidence its value is
minimal.’”)(quoting Callahan v. Campbell, 427 F.3d 897, 937 (11th Cir. 2005));
Callahan, 427 F.3d at 937 (“The mitigation evidence offered at the Rule 32 hearing
primarily concerned physical abuse Callahan suffered as a child, yet Callahan was 35
165
when he committed the crime. When a defendant is several decades removed from
the abuse being offered as mitigation evidence its value is minimal.” (citing Francis
v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990)); Francis, 908 F.2d at 703 (“Given the
particular circumstances of this case including, among other things, the fact that
[defendant] was thirty-one years old when he murdered [the victim], evidence of a
deprived and abusive childhood is entitled to little, if any, mitigating weight.” (citing
Francois v. Wainwright, 763 F.2d 1188, 1191 (11th Cir. 1985)); Washington v. State,
95 So. 3d 26, 45 (Ala. Crim. App. 2012)(“Moreover, Washington was 55 years of age
when he committed the murders. We question, as have other courts, the mitigation
value of evidence of school records and childhood experiences when a defendant is
55 at the time of the offense.”)(citing Francis, 908 F.2d 696, 703). See also Eddings
v. Oklahoma, 455 U.S. 104, 115 (1982) (“Eddings was a youth of 16 years at the time
of the murder. Evidence of a difficult family history and of emotional disturbance is
typically introduced by defendants in mitigation. In some cases, such evidence
properly may be given little weight. But when the defendant was 16 years old at the
time of the offense there can be no doubt that evidence of a turbulent family history,
of beatings by a harsh father, and of severe emotional disturbance is particularly
relevant.”).
166
In this case, “[t]he sentencing jury [and the trial judge were] . . . ‘well
acquainted’ with [Perkins’s] background,” of a horrific and impoverished childhood.
See Wong v. Belmontes, 558 U.S. 15, 23 (2009). The second-hand account of Ms.
Snow, as well as testimony of Dr. Goff and Mr. Owens, presented an accurate picture
of Mr. Perkins’s past, which was credited by the trial court. Indeed, the sentencing
judge found these “non-statutory mitigating circumstances” existed: (1) Perkins
“lacked socialization and had a horrible childhood, involving the death of his father,
the drowning of his brother in his presence, the sexual abuse of his sister by his
stepfather in his presence, physical abuse of Defendant by his stepfather, being run
away from home at a very early age and being sexually abused,” and (2) Perkins “and
his family were very poor, and Defendant had to ‘raise himself’[, and] [h]is mother
and stepfather and other family members were alcoholics.” (Doc. 10, Vol. 2 at 35253.) Due to Ms. Hocutt’s inability to testify in person, the benefits of presenting her
testimony second-hand, even if admissible, “would have offered an insignificant
benefit, if any at all.” See Wong, 558 U.S. at 22-23 (Court of Appeals held that trial
counsel “should have presented more humanizing evidence;” Supreme Court found
that trial counsel had presented “substantial mitigation evidence, much of it targeting
[a] ‘humanizing’ theme,” and that “[a]dditional evidence on this [theme] would have
offered an insignificant benefit, if any at all”).
167
The court also finds that counsel’s failure to offer expert testimony that Perkins
would not present a danger in prison did not prejudice Perkins. Such evidence would
not have altered the balance between the aggravating and mitigating circumstances.
Dr. Strickland’s testimony at the R. 32 hearing, explaining the effects of his
childhood on Perkins’s development and her conclusion – that he would not be
dangerous in prison – was “neither complex nor technical” and her conclusions
“required only that the [sentencer] make logical connections of the kind a layperson
is well equipped to make” between information already in evidence. Id. at 24. “The
[sentencer] simply did not need expert testimony to understand [that Perkins would
not be dangerous in prison]; it could use its common sense or own sense of mercy.”
Id. at 23-24. This seems to be a straight-forward conclusion because all of Perkins’s
past violent or dangerous acts have been visited upon women, and, in prison, he
would have little, if any, opportunity to violate another woman. Nevertheless,
considering Dr. Strickland’s testimony, the court finds it would not significantly
change the balance of aggravating and mitigating factors.
When asked “[w]hy [Perkins’s] behavior [was] so different in prison,” Dr.
Strickland responded –
because it provides this external structure. It provides rules and
regulations that Mr. Perkins is unable to attain on his own. . . . He
doesn’t have internal structures to control his impulses, control his
168
drinking, control these messages and scripts that he’s created over his
lifetime.
(Doc. 10, Vol. 64 at 529-30.) Her testimony, however, was not so different in
meaning from the so-called “killing words” of Owens’s testimony. At the penalty
phase, Mr. Owens testified:
Q Mr. Owens, explain how a – well what the term – What does
the term, socialization, mean?
A Okay. I guess, simply, it means the learning that we go
through as individuals that help us to function in society the way society
expects us to function based on the general society or possibly our
subculture that we may live in. We would learn things, like, right and
wrong, sex roles, how to get along with other people, what’s an
acceptable way to deal with angry or aggressive kind of feelings, just
those types of – just general – everyday life that we live or socialize.
...
Q What type of things enter into that?
A Well interactions we have with our parents, community peers.
Of course, during the early stages, parents are the most important people
that we come in contact with. I think it’s fairly accepted that children go
through various developmental stages. During the first year, you would
form a secure kind of attachment, hopefully, with your parents, your
primary care giver, whoever that may be. From one to three years, not
all of the developmental things but some of the more important ones,
you would begin to develop problem-solving skills, the ability to
empathize with others. And then as years go by, somewhere between
the seventh and the twelfth year, one of the more important things you
learn is a sense of right and wrong. You begin to internalize that.
Q What do you mean by internalize that?
169
A Well, to just know it without somebody having to tell you
that’s right or that’s wrong. I guess, develop . . . morality, just a sense
of right and wrong so if you walk into a situation, something is going
on, you would have a feeling of whether it was right or wrong that you
participate in it or observe it.
Q All those factors that you mentioned, the family, the
environment, would have an influence on a person’s morality.
A Sure. The literature indicates that people – children – who fail
to form that sense of attachment that I talked about during that first year
or so of their life tend to have problems. They exhibit poor social
adjustment, have problems handling aggression, have significant
problems handling impulse control. They have very poor impulse
control.
...
Q Is there – What effect, if any, would a child being abused or
witnessing abuse of a sibling have on their morality or socialization?
A Well all those things would weaken their sense of or
understanding of right and wrong. In fact, again, literature indicates that
witnessing physical assaults between parents or other siblings by the
adults weakens their allegiance to societal norms. The actual assault
against a child would, basically, weaken the bond between the parent
and the child.
Q Is it fair to say that we learn, from our parents how to react to
a situation?
A Sure, I would think so.
...
170
Q Based on all the information that you gathered and all the
sources that you had, what is your, assessment, your social assessment,
of Mr. Perkins’[s] younger life?
A Well it sounds as if he grew up with very little, if any,
nurturing or support. Descriptions were that he was out of home more
than he was there from the time he was seven years of age on up. There
would have been more than likely been very little bonding with the
primary care giver. And because of the fact that he was not receiving
the nurturing that he needed during the early years, would feel there
would be delays at best in his developmental stages, probably some area
of deficit, things like empathy, social conscious, a sense of right and
wrong. Problem solving skills would probably be weak.
Q So based upon those factors, you feel that it would have a
definite impact on Roy Perkins as he was in 1990.
A As an adult, yes.
Q Tell us, again, specifically, what influence that would or what
you would expect.
A Well he would have a – like I say have – difficulties
empathizing with other people. He would have problems handling
aggressive behavior, poor impulse control, poor interpersonal skills.
The environment that he grew up in would – as described would – tend
to socialize him to accept violence as a normal and acceptable behavior
as a way to deal with problems, as a method of problem solving.
...
Q What do you mean by empathizing with other people?
A Well, you know, empathize would be to be able to see things
from their perspective, to feel or understand how they might feel about
something, a problem. a situation.
171
...
Q Would it be fair to say that Roy Edward Perkins never had a
sense of compassion?
A . . . I would think that it would be at least impaired.
Q What do you mean by impaired?
A Well, would not have as possibly the same level of
compassion. Maybe under some circumstances, there might be some
compassion.
...
Q Would it be fair to say that he never developed a sense of
empathy, the ability as you defined it, believe, to understand others?
A . . . I think that that would have definitely been impaired.
Again, there might be some limited, but not to the level that we would
hope that individuals would have.
Q Would it be fair to say then that Roy Edward Perkins never
developed a sense of – a social – conscious?
A Again, I would think it would be very impaired, not the level
of social conscious.
Q And would it be fair to say that acts of violence would be
acceptable to him?
A As I said, he did grow up in a home where violence was
frequent. And so he would have been – to use a term that I used earlier
– socialized, to not view violence as necessarily wrong.
...
172
Q And would it be fair to say that he does not have today and did
not have back in August of 1990 and has never had a normal sense of
guilt or remorse in an individual for social unacceptable actions, that he
just doesn’t have a normal sense of guilt or conscious?
A As I said, I think this would have interfered with the
development of it in a normal sense. Again, there would – I would –
hope or assume that there was some. . . .
(Doc. 10, Vol. 17 at 2824 -26, 2833-35, 2837-39.)
At the Rule 32 hearing, Dr. Strickland testified that Perkins had an impaired
ability to empathize and that, although he might know right from wrong, he was
unable to conform his behavior due to ingrained behaviors and “scripts” from his
childhood:
Q We heard Mr. Owens testify . . . that Mr. Perkins has no sense
of right and wrong, and I think these were, what Mr. Smith was
testifying earlier this morning, were “killing words.” He left the jury
with these killing words, no sense of right and wrong, no sense of
empathy. Do you agree that he has no sense of right and wrong?
A No, I don’t agree with that.
Q Why not?
A Well, I think there [are] examples, and I think I just read one
moments ago, where he knows that this should stop and that he should
call or that he should get help or that he should stop this in some way.
And so he knows that, and then he’s met with ineffectiveness; nothing
works. He risks himself and it doesn’t work, and so he gives up and he
leaves. So I think that to say he doesn’t know right from wrong or
doesn’t have any kind of sense of attachment or involvement with doing
the right thing would be inaccurate.
173
Q If he knows right from wrong, why does he so often choose
wrong?
A Well, he chooses wrong because it is – it has become such an
[ingrained] – he chooses violence; he chooses alcohol abuse that leads
to violence. He chooses rape as a – as the script that goes – that
becomes very – that has already become so [ingrained] in the way that
he operates and sees the world and behaves in the world.
...
Q Mr. Owens also testified that Mr. Perkins lacked empathy,
lacks social conscience, and lacks the sense of right and wrong. I want
to talk about the empathy and compassion or social conscience. Do you
believe that Mr. Owens was accurate, that he doesn’t have empathy?
A I think that the word “empathy” is – tends to be a
misunderstood and misused word.
Q Why?
A I think that people think that empathy is something innate,
something that we are born with, something that we naturally have, and
that’s not the case. Empathy is a learned thing, a learned concept, and
it’s a skill that we develop as a result of socialization, as a result of
caregiver involvement, training, modeling, all of those sorts of things.
And so we have a situation here where all of the skill, the skills involved
in being empathetic, being thoughtful about other people, are not always
– not always practiced or not always considered, because it’s so
compromised in Mr. Perkins. That doesn’t mean that he’s not capable
of that.
Q Okay.
A It’s not a permanent state, I guess I should say.
174
(Doc. 10, Vol. 64 at 520-23.)
As the above quoted testimony shows, both Dr. Strickland and Mr. Owens
testified that Perkins’s ability to empathize and to control his behaviors was
compromised because of his experiences as a child. Given the similar nature of the
experts’ findings and testimony, the court finds that weighing Dr. Strickland’s
testimony, together with evidence presented during the sentencing phase and Ms.
Hocutt’s affidavit, does little to shift the balance between the aggravating and
mitigating factors.
The sentencing court found that the statutory aggravating factors outweighed
the statutory and non-statutory mitigating factors.30 (See doc. 10, Vol. 2, at 353-54.)
30
The court found three statutory aggravating circumstances: (1) “The capital
offense was committed by a person under sentence of imprisonment,” (2) “The
defendant was previously convicted of another capital offense or a felony involving
the use or threat of violence to the person,” and (3) “The capital offense was
committed while the defendant was engaged . . . in the commission of, or an attempt
to commit . . . rape, robbery, burglary or kidnapping.” (Doc. 10, Vol. 2 at 348-49.)
The court found one statutory mitigating circumstance: “The capacity of the
defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired.” (Id. at 351.) And, it found the
following non-statutory mitigating circumstances:
(1) Defendant took Victim near Ms. Hood’s house. However,
Victim said she’d been shot about an hour earlier. This was a belated
act, at best, and Defendant may have been merely getting rid of the
Victim.
(2) Defendant was drinking alcohol, taking pills and abusing
175
The court finds that “[t]he new material,” Dr. Strickland’s testimony and Ms.
Hocutt’s affidavit, “is . . . not so significant that, even assuming [Perkins’s] trial
counsel performed deficiently, it was necessarily unreasonable for the [Alabama
court] to conclude that [Perkins] had failed to show a ‘substantial’ likelihood of a
different sentence.” Cullen v. Pinholster, 563 U.S. 170, 202 (2011)(citing Richter,
drugs during the general period of time of the offense. However, this
was voluntary.
(3) Defendant suffers from borderline personality disorder, is an
alcoholic, is of borderline intelligence, and probably has organic brain
dysfunction.
(4) Defendant was under mental or emotional disturbance,
although not to an extreme degree.
(5) Defendant lacked socialization and had a horrible childhood,
involving the death of his father, the drowning of his brother in his
presence, the sexual abuse of his sister by his stepfather in his presence,
physical abuse of Defendant by his stepfather, being run away from
home at a very early age and being sexually abused.
(6) Defendant s intelligence is below 92% of the population, and
he has a full scale I.Q. of 76.
(7) Defendant and his family were very poor, and Defendant had
to “raise himself”. His mother and stepfather and other family members
were alcoholics.
(Id. at 352-53.) In its Sentencing Order, the court stated it was “unable to justify a
sentence of life imprisonment without parole after having weighed all of the
circumstances previously stated. Furthermore, after full and thorough consideration,
the Court is compelled to accept the recommendation of the jury.” (Id. at 354.)
176
562 U.S. at 111-12 (citing Strickland, 466 U.S. at 693))). Based on this evidence, the
court finds that Perkins is not entitled to any relief based on his claim that he was
denied a fair trial by the deficient performance of his trial counsel in investigating and
presenting mitigation evidence.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
5. Failure to Challenge Perkins’s Rape Conviction
Perkins contends that his trial counsel were ineffective for failing to investigate
and challenge his Fayette County conviction for the rape of B.P. (Doc. 1 ¶¶ 218-40.)
He alleges:
218. Perkins’s trial counsel were ineffective for failing to review
the court file for a first-degree rape conviction that played a critical role
in the State’s case. The court file revealed that the conviction was
177
invalid. The state court’s holding that counsel performed effectively is
an unreasonable application of clearly established federal law, see
U.S.C. § 2254(d)(1), and an unreasonable determination of the facts in
light of the evidence presented in state court, see 28 U.S.C. §
2254(d)(2).
...
219. The State prosecuted Perkins for capital murder on the
theory that he intentionally killed Cathy Gilliam in the course of a
kidnapping, and that he intended to rape Gilliam during the kidnapping.
. . . The defense disputed that Perkins intended to rape Gilliam, and the
question of intent dominated the trial.
220. Perkins’s trial counsel – Dennis Steverson and James Smith
– were appointed by the trial court in April 1993 and July 1993,
respectively. [(Doc. 10, Vol. 2 at 292-93.)] Upon appointment, they
became aware “immediately” of rapes allegedly committed by Perkins
prior to the abduction of Cathy Gilliam. [(Id., Vol. 64 at 428.)] Counsel
“suspected [the State] would use” the collateral crimes in its case, [(id.)],
and they filed motions to prevent the State from mentioning the
collateral rapes, [(id., Vol. 1 at 177-78)], as well as to force the State to
identify the specific aggravating circumstances that it intended to use,
[(id.)]. The trial court denied both motions, so defense counsel knew
that the collateral-act evidence would be admitted and that they would
need to conduct their own investigation into aggravating circumstances.
[(Id., Vol. 63 at 260-61.)]
221. One of the alleged rape victims was [B.P.]. Her case
resulted in a conviction in the Circuit Court of Fayette County,
Alabama, which is adjacent to Tuscaloosa County. [(Id., Vol. 60 at
5299.)] Counsel were specifically aware of this conviction immediately
after they were appointed, and they expected the State to use it as
collateral-act evidence. [(Id., Vol. 64 at 428-29.)] Counsel also knew
that the State would use the conviction to establish a
prior-violent-felony aggravating circumstance, see Ala. Code §
13A-5-49(2), and that the evidence was inherently likely to inflame
178
jurors, see, e.g., [(doc. 10, Vol. 11 at 1696-1714)]. The State did not
attempt to conceal its plan to use the [B.P.] rape – it openly
acknowledged that she would be called as a witness. [(Id., Vol. 3 at 149
[prosecutor stating that “sexual acts . . . with [B.P.] . . . would be
admissible to prove” intent to rape and identity of perpetrator].)]
222. Despite knowing from the outset that Perkins had been
convicted of first-degree rape of [B.P.], that [B.P.] likely would testify
at Perkins’s trial, and that the first-degree rape would constitute a
statutory aggravating circumstance at the penalty phase, counsel did not
examine the court file for the rape conviction before trial. [(Id., Vol. 64
at 430-31.)]
223. As expected, [B.P.] testified during the guilt phase of
Perkins’s trial that Perkins had raped her and that he had been convicted
of rape as a result. [(Id., Vol. 12 at 1890-1912.)] Her testimony was
detailed and graphic. [(See id.)] Defense counsel cross-examined [B.P.]
about the details of the rapes, [(id. at 1907-11)], but they did not have
the court file to assist them because they had not looked at it, [(id., Vol.
64 at 430-31)]. Perkins was convicted of capital murder. [(Id., Vol. 2
at 288, 299.)]
224. At the penalty phase of the trial, the State argued that the
conviction for the [B.P.] rape supported the aggravating circumstance
that Perkins had previously been convicted of a violent felony. [(Id.,
Vol. 17, Tab 3 at 2776]; see Ala. Code § 13A-5-49(2) (defining the
aggravating circumstance). Jurors were told that, in deciding
punishment, they could consider detailed testimony about the rape that
had already been admitted during the guilt phase. [(Doc. 10, Vol. 17,
Tab 3 at 2776.)] The jury recommended that Perkins be sentenced to
death by a vote of ten to two. [(Id., Vol. 2 at 289, 299-300.)]
225. At the sentencing hearing before the trial court, the State
offered a certified copy of “the entire file” for the first-degree rape
conviction. [(Id., Vol. 18 at 3044.)] Defense counsel saw the court file
for the first time at that hearing. [(Id., Vol. 64 at 431.)] They
immediately recognized that the conviction was invalid and tried to
179
prevent the trial court from considering it. [(Id., Vol. 18 at 3047-48.)]
The conviction was invalid due to a conflict of interest. The file
contained a notice of disclosure and waiver of the conflict, and the
notice and waiver had not been executed until the day after Perkins
pleaded guilty. [(Id.)] See generally Cuyler v. Sullivan, 446 U.S. 335,
348 (1980) (announcing test for unconstitutional conflict of interest).
The trial court overruled the objection. [(Doc. 10, Vol. 18 at 3048.)]
226. The trial court then relied on Perkins’s first-degree rape
conviction to establish the prior-violent-felony aggravating
circumstance and sentenced Perkins to death. [(Id., Vol. 2 at 354.)]
227. In Rule 32 proceedings, Perkins claimed that his trial
counsel were ineffective for failing to investigate and challenge the
first-degree rape conviction prior to the capital trial. [(Id., Vol. 41, Tab
11 at 1435-43.)] At the evidentiary hearing, counsel Dennis Steverson
and James Smith acknowledged that they began representing Perkins in
April and July of 1993, [(id., Vol. 63 at 181; id., Vol. 64 at 428)], and
that they could have filed a Rule 32 petition [in the Fayette County rape
case] prior to the capital trial, [(id., Vol. 63 at 208)]. They also stated
that the rape conviction “was one of the main things that we wanted to
keep out,” [(id. at 197)], because it would “enhance . . . the [likelihood
of] conviction of Mr. Perkins,” [(id. at 198)], as well as “the likelihood
of bringing back a death penalty . . . if he’s already been convicted of
rape before,” [(id. at 199; see also id, Vol. 64 at 417 (“[T]he State’s
theory of the case, it was obvious, was to portray him as a sexual
offender completely.”), 422 (“It was almost like we were trying those
[rape] cases [instead of trying the capital murder case].”))]. Despite
recognizing that the [B.P.] rape conviction would be presented at trial
and that it was highly prejudicial, Perkins’s trial counsel did not provide
any strategic, tactical, or other justifiable reason for failing to look at the
file from the collateral case.
228. In the Rule 32 proceedings, Perkins also presented evidence
showing that there was an active conflict of interest when he pleaded
guilty in the first-degree rape case, and the conflict adversely affected
his counsel’s performance. [(Id., Vol. 60 at 5235.)] Perkins’s attorney,
180
Steven Nolen, was appointed to represent Perkins while simultaneously
representing Perkins’s uncle Raymond Watkins, who was charged with
hindering prosecution. [(Id. at 5233-34.)] On November 19, 1991,
Perkins entered a guilty plea with Nolen’s assistance in exchange for a
99-year sentence. [(Id. at 5301.)] Nolen did not advise Perkins before
Perkins entered the plea that he was also representing Watkins.31
229. The day after Perkins pleaded guilty to first-degree rape and
received a 99-year sentence, Steven Nolen assisted Raymond Watkins
with entering a plea bargain that “became available only after Mr.
Perkins pled guilty to rape.” [(Id. at 5235.)] Nolen testified that he
“would not have been able to negotiate the [favorable] plea for Mr.
Watkins if Mr. Perkins had not first pled guilty” to the first-degree rape
charge.32 [(Id. [alteration in doc. 1].)] Nolen did not disclose his
conflict of interest to Perkins until the day after Perkins entered the
31
Nolen testified in his Affidavit that he had “no independent recollection” of
a conversation with Perkins regarding a possible conflict, and “When I state that I
have no independent recollection, it does not mean that there could not have been
other conversations with either Mr. Perkins or Mr. Watkins regarding any possible
conflict; it means I do not remember one way or the other.” (Doc. 10, Vol. 60 at
5235.)
32
Nolen did not testify that he would not have been able to negotiate a
favorable plea for Watkins without Perkins’s guilty plea. He testified, “To the best
of my recollection, Mr. Watkins’[s] negotiated plea became available only after Mr.
Perkins pled guilty to rape. I believe that I would not have been able to negotiate the
plea for Mr. Watkins if Mr. Perkins had not first pled guilty. Once Mr. Perkins pled
guilty, it was easier to secure the deal for Mr. Watkins. Mr. Perkins’[s] plea of guilty
and sentence certainly mitigated the case against Mr. Watkins.” (Doc. 10, Vol. 60 at
5235.) He does not testify that Perkins’s guilty plea was the quid pro quo for
Watkins’s plea deal or that he encouraged Perkins to pled guilty for the sake of
Watkins or that he negotiated a harsher sentence for Perkins to benefit Watkins. He
states simply that Perkins’s conviction on the rape claim mitigated the case against
Watkins, who was charged with hindering the State’s prosecution of Perkins. (Id.)
181
99-year plea.33 [(Id. at 5235 and 5309 (sentencing order); see also id.
at, 5254 (post-plea waiver of conflict).)]
230. Nolen’s conflict of interest violated Perkins’s Sixth
Amendment right to counsel and provided clear grounds for a Rule 32
petition challenging the first-degree rape conviction. The controlling
test of when a conflict is impermissible requires a showing of an active
conflict of interest and an adverse effect on the representation. Cuyler
v. Sullivan, 446 U.S. 335, 348 (1980); see also Holloway v. Arkansas,
435 U.S. 475, 490-91 (1978). Prior to Perkins’s pretrial proceedings,
Alabama courts had recognized that such a conflict was a ground for
overturning a conviction under Rule 32. See, e.g., Browning v. State,
607 So. 2d 339, 342-44 (Ala. Crim. App. 1992)(vacating conviction in
Rule 32 proceeding); see also Pinkerton v. State, 395 So. 2d 1080, 1089
(Ala. Crim. App. 1980). Here, the Sixth Amendment standard was
clearly met. Nolen had an active conflict because he could not get
Raymond Watkins a favorable plea deal unless he counseled Perkins to
plead guilty to first-degree rape. There was no valid waiver, because the
waiver came after Perkins entered his plea. See generally Boykin v.
Alabama, 395 U.S. 238, 242 (1969) (holding waivers of rights must be
voluntary and intelligent). And there was an adverse effect because
taking the first-degree rape case to trial would have been a reasonable
defense strategy. As Nolen explained, he could not try Perkins’s case
without foreclosing Watkins’s favorable plea deal. [(Doc. 10, Vol. 60 at
5235.)] Faced with competing interests, Nolen chose to serve
Watkins’s, and this adversely affected his representation of Perkins.
Therefore, Perkins’s first-degree rape conviction was invalid and could
have been attacked through a collateral proceeding.
...
233. Clearly established federal law holds that counsel in a
criminal case “has a duty to make [objectively] reasonable investigations
33
This statement is not supported by a record cite. Nolen testified he did not
recall any conversation with Perkins about his potential conflict of interest other than
the waiver and the record does not disclose the negotiated terms of the plea deal.
182
or to make [an objectively] reasonable decision that makes particular
investigations unnecessary.” Strickland v. Washington, 466 U.S. 668,
691 (1984). In Rompilla v. Beard, 545 U.S. 374, 383 (2005), the United
States Supreme Court addressed whether a state court unreasonably
applied Strickland to a claim that a capital defendant’s counsel were
ineffective for failing to conduct a reasonable investigation for
mitigation evidence, id. at 380-90. While counsel made some efforts to
prepare a defense, they failed to review the file from their client’s prior
rape conviction even though they had notice that the prosecutor would
attempt to establish an aggravating circumstance by using a transcript in
the file. Id. at 384-85. Failure to examine the file constituted deficient
performance because, by failing to do so, “they were seriously
compromising their opportunity to respond to a case for aggravation.”
Id. at 385. The Supreme Court explained that the “prosecution was
going to use the dramatic facts of a similar prior offense,” and counsel
therefore “had a duty to make all reasonable efforts to learn what they
could about the offense. Reasonable efforts certainly included obtaining
the [state’s] own readily available file on the prior conviction to learn
what the [state] knew about the crime, to discover any mitigating
evidence the [state] would downplay, and to anticipate the details of the
aggravating evidence the [state] would emphasize.” Id. at 385-86.
234. The state court’s conclusion that Perkins’s counsel were not
deficient is contrary to federal law under 28 U.S.C. § 2254(d)(1).
Recognizing that there are no per se guidelines that govern counsel’s
performance, Strickland, 466 U.S. at 689, the facts underlying this claim
are in material respects identical to those that established deficient
performance in Rompilla, see Williams v. Taylor, 529 U.S. 362, 406
(2000)(“A state-court decision [is] contrary to this Court’s clearly
established precedent if the state court confronts a set of facts that are
materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent.”). No
reasonable strategic reason overrode counsel’s duty here; counsel had
acute concerns about the conviction’s impact on the jury and strong
incentives to prepare a rebuttal. [(See, e.g., doc. 10, Vol. 63 at 199
(Steverson) (“[I]t will certainly increase the jury’s likelihood of bringing
back a death penalty . . . . A jury would be highly insensitive to that and
183
likely to return a verdict of guilty on that charge.”).)] Counsel’s
performance was unreasonable, and the state court’s conclusion is
contrary to Rompilla.
235. The state court decision also involves an unreasonable
application of clearly established federal law under 28 U.S.C. § 2254
(d)(1) by “ignoring the fundamental principles established by [the
United States Supreme Court’s] most relevant precedents.” Abdul-Kabir
v. Quarterman, 550 U.S. 233, 258 (2007)(holding state court decision
involved unreasonable application of federal law). In Strickland, the
Supreme Court held that counsel “has a duty to bring to bear such skill
and knowledge as will render the trial a reliable adversarial testing
process.” Strickland, 466 U.S. at 688. The Strickland Court made clear
that “ardor” and “independence” of defense counsel are core Sixth
Amendment values. Id. at 690. The state court ignored those principles.
It held that counsel did not have a duty to examine the court file because
“the facts surrounding Perkins’s 1991 rape conviction were introduced,
in depth, during the guilt proceedings.” Perkins, [144 So. 3d at 483].
But the version of facts “introduced . . . during the guilt proceedings”
was the prosecution’s version – the version that defense counsel had a
duty to investigate and test. If defense counsel had actually adopted a
practice of relying on the guilt-phase proceedings to inform them about
the State’s case, that would certainly be an unjustifiable trial strategy.
See Kimmelman v. Morrison, 477 U.S. 365, 385 (1986)(“Such a
complete lack of pretrial preparation puts at risk both the defendant’s
right to an ample opportunity to meet the case of the prosecution . . . ,
and the reliability of the adversarial testing process.” (citation and
internal quotation marks omitted)). The state court’s contrary holding
involved an objectively unreasonable application of Strickland.
...
238. Clearly established federal law holds that counsel’s deficient
performance entitles a petitioner to relief where there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
“Reasonable probability” means “a probability sufficient to undermine
184
confidence in the outcome” of the petitioner’s trial. Id. In making this
determination “a court . . . must consider the totality of the evidence
before the judge or jury,” imagine how the “evidentiary picture” would
have been altered absent counsel’s errors, and determine whether “the
decision reached would reasonably likely have been different.” Id. at
696. Where, as here, counsel’s errors affect the penalty phase of a
capital trial, a court must “reweigh the evidence in aggravation against
the totality of available mitigating evidence” and determine whether the
result is worthy of confidence.” Wiggins v. Smith, 539 U.S. 510, 534
(2003).
239. The state court’s decision is contrary to or involves an
unreasonable application of Strickland when it holds that “[c]ounsel was
not ineffective for failing to . . . challenge Perkins’s 1991 conviction by
filing a collateral proceeding in another county during Perkins’s
capital-murder proceedings.” Perkins, [144 So. 3d at 483]. Because
Perkins’s counsel did not learn that the conviction was invalid until the
end of the trial, [(doc. 10, Vol. 64 at 431)], they could not make a
reasonable decision about how to respond. Therefore, the state court
appears to mean either that counsel never have a duty to challenge a
prior conviction or that the court assumes for purposes of a Strickland
prejudice analysis that counsel would not have challenged it. Both
assumptions are contrary to or unreasonable applications of Strickland.
First, an assumption that counsel never have a duty to challenge a prior
conviction is contrary to Strickland’s holding that its test applies to “the
range of legitimate decisions regarding how best to represent a criminal
defendant,” and that reasonableness depends “on the facts of the
particular case . . . .” Strickland, 466 U.S. at 690. An exemption would
violate the rule that Strickland “provides sufficient guidance for
resolving virtually all ineffective-assistance-of-counsel claims.”
Williams v. Taylor, 529 U.S. 362, 392 (2000). Second, an assumption
that counsel would not have collaterally challenged the conviction is
inconsistent with Strickland’s “strong presumption” that counsel will
make reasonable decisions on behalf of the client. See Strickland, 466
U.S. at 689. As the Supreme Court held in Rompilla, “once counsel had
an obligation to examine the file, counsel had to make reasonable efforts
to learn its contents; and once having done so, they could not reasonably
185
have ignored mitigation evidence or red flags simply because they were
unexpected.” Rompilla, 545 U.S. at 391 n.8.
...
243. Finally, the state court’s ultimate conclusion that counsel’s
deficient performance did not prejudice Perkins is objectively
unreasonable. Eliminating the first-degree rape conviction would “have
had a pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture.” Strickland, 466 U.S. 695-96.
The State would have lost its vehicle for moving the prejudicial
collateral-rape evidence from the guilt phase to the penalty phase. This
is significant because, under Alabama law, the decision to impose death
or life-imprisonment-without-parole depends on the weight that jurors
and judges assign to aggravating circumstances and mitigating
circumstances. See Ala. Code § 13A-5-46(e); id. [§] 13A-5-48; Cook v.
State, 369 So. 2d at 1257. On the mitigating side of the scale, Perkins
had the statutory mitigating circumstance that his capacity to conform
his conduct to the law was impaired. [(Doc. 10, Vol. 2 at 351 [citing
Ala. Code § 13A-5-51(6)].)] Additionally, the trial court also found
nonstatutory mitigating circumstances concerning Perkins’s background,
mental health, and substance abuse problems. [(Id. at 352-53.)]
Invalidating the first-degree rape conviction would have greatly
“reduced the ballast on the aggravating side of the scale” and allowed
Perkins’s mitigating circumstances a reasonable likelihood of
convincing jurors and the sentencing judge to vote for life. See Porter,
558 U.S. at 42. The state court’s holding that Perkins failed to show
prejudice is objectively unreasonable. See, id.
(Id. ¶¶ 218-30, 233-35, 238-39, 243 [original footnotes omitted; footnotes added].)
The Alabama Court of Criminal Appeals rejected this claim:
Perkins next argues that counsel was ineffective for failing to
investigate and to challenge, in a collateral proceeding, Perkins’s 1991
conviction in Fayette County for rape. Specifically, Perkins argues that
this prior conviction was the only conviction used to support the
186
aggravating circumstance that Perkins previously had been convicted of
a crime involving the use or threat of violence, § 13A-5-49(2), Ala.
Code 1975; thus, counsel was ineffective for failing to investigate that
conviction.
When denying relief on this claim, the circuit court stated:
“Trial counsel had no duty or obligation to engage in
a collateral challenge to [Perkins’s] Fayette County
conviction for rape. Even if such a duty or obligation is
found to exist, there is insufficient proof that the challenge
would have been effective or meaningful as the evidence
against [Perkins] in that case overwhelmingly established
his guilt.”
[(Doc. 10, Vol. 58 at 4493.)]
At the postconviction evidentiary hearing, Perkins introduced an
affidavit executed by attorney Steven Nolen. Nolen wrote that he had
been appointed to represent Perkins in two rape charges in Fayette
County and that he had also represented Perkins’s uncle, who had been
charged with hindering prosecution by assisting Perkins in avoiding
apprehension for those rape charges. Nolen stated:
“On November 19, 1991, the day after Mr. Perkins
pled guilty in case number CC-90-096, I represented
Raymond Watkins [Perkins’s uncle] as he entered a plea of
guilty in case number CC-90-128. In return for Mr.
Watkins’s plea of guilty, the charge of hindering
prosecution in the first degree, a felony, was reduced to
hindering prosecution in the second degree, a
misdemeanor.
“. . . .
“I have been shown by Mr. Perkins’s postconviction
counsel two ‘waivers of conflict’ purportedly signed by
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Mr. Perkins and Mr. Watkins, both dated November 19,
1991, and both witnessed and notarized by me on that day.
I have no independent recollection of any other
conversations with either Mr. Perkins or Mr. Watkins
regarding any possible conflict of interest in my
representation of them. When I state that I have no
independent recollection, it does not mean that there could
not have been other conversations with either Mr. Perkins
or Mr. Watkins regarding any possible conflict; it means I
do not remember one way or the other. I believe that the
court may have required some type of written waiver
before accepting Mr. Watkins’s plea on November 19,
1991, and that was the reason I secured the waivers.
However, I do not have a clear recollection of the court
requiring a written waiver prior to accepting Mr. Watkins’s
plea of guilty in case number CC-90-128.”
[(Id., Vol. 60 at 5233.)]
At trial, when proof of Perkins’s 1991 guilty-plea conviction for
rape was introduced during the penalty phase, Steverson objected,
stating that the waiver of conflict of counsel was dated the day after
Perkins pleaded guilty. The court overruled counsel’s objection.
Steverson testified at the evidentiary hearing that he did not challenge
Perkins’s rape conviction by filing a postconviction petition in Fayette
County and that he had never filed a postconviction petition attacking
one of his client’s prior convictions. The trial record also shows that
extensive testimony was introduced at the guilt phase concerning
Perkins’s 1991 conviction. The victim testified, in depth, concerning
the facts surrounding the conviction. The record affirmatively shows
that counsel was not ignorant concerning the facts and circumstances of
Perkins’s 1991 rape conviction.
In Hamm v. State, 913 So. 2d 460 (Ala. Crim. App. 2002), we
addressed a similar issue and stated:
188
“Hamm contends, in the alternative, that trial
counsel’s performance was deficient because he ‘could
have challenged the Tennessee convictions in Tennessee
courts and had the courts address the merits of the claims
in 1987.’ (Hamm’s brief at p. 25)(emphasis in original).
Hamm’s assertion that Alabama trial counsel had a duty to
challenge in a Tennessee court the merits of the nine-yearold convictions so that he could then prevent consideration
of the prior convictions at the 1987 capital sentencing
hearing is not supported by any legal authority.”
913 So. 2d at 479 (emphasis in original).
Our neighboring State of Georgia in Barker v. Barrow, 290 Ga.
711, 723 S.E.2d 905 (2012), addressed whether counsel was ineffective
for failing to research a prior guilty-plea conviction the State intended
to use to enhance the defendant’s sentence. That court, in declining to
find counsel ineffective, stated:
“Barker maintains that his trial counsel’s
performance was deficient because counsel failed to
adequately investigate the validity of his prior guilty pleas
in that counsel did not review transcripts of the plea
colloquies, which he claims would have revealed the pleas’
constitutional defects. Relying principally upon Rompilla
v. Beard, 545 U.S. 374, 377, 125 S. Ct. 2456, 162 L. Ed. 2d
360 (2005), Barker urges that, given the State’s notification
that it would seek to enhance his sentence by his prior
pleas, his trial counsel had a basic legal duty to retrieve and
read the plea transcripts.
“Certainly, as Barker maintains, trial counsel has the
obligation to make reasonable investigations or to make a
reasonable decision that makes a particular investigation
unnecessary. Terry v. Jenkins, 280 Ga. 341, 346(2)(c), 627
S.E.2d 7 (2006). But, in any case in which the
ineffectiveness of counsel for inadequate investigation is
189
claimed, the reasonableness of a particular decision not to
investigate in the manner urged must be assessed in light
of all the circumstances at that time, and such assessment
must include a heavy measure of deference to counsel’s
judgments. Id. at 347(2)(c), 627 S.E.2d 7.
“The decision in Rompilla v. Beard does not alter
this. The Supreme Court expressly held that ‘when a
capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is
available, his lawyer is bound to make reasonable efforts to
obtain and review material that counsel knows the
prosecution will probably rely on as evidence of
aggravation at the sentencing phase of trial.’ 545 U.S. at
377, 125 S. Ct. 2456. The Court explained that its analysis
did not create a ‘”rigid, per se” rule that requires defense
counsel to do a complete review of the file on any prior
conviction introduced.’ Id. at 389, 125 S. Ct. 2456.
Instead, it found counsel in that case lacking for failing to
make reasonable efforts to review the file of the
defendant’s prior conviction despite knowledge that the
prosecution intended to introduce Rompilla’s prior
conviction not ‘merely by entering a notice of conviction
into evidence but by quoting damaging testimony of the
rape victim in that case.’ Id. Thus, unlike the present case,
there was no viable substitute for retrieval and examination
of the damaging testimony itself. Moreover, the Court
noted that the found unreasonableness of not securing the
actual file for review ‘was heightened by the easy
availability of the file,’ and the ‘great risk that testimony
about a similar violent crime would hamstring counsel’s
chosen defense of residual doubt.’ The Supreme Court
expressly cited these circumstances as rendering
unacceptable the conclusion that Rompilla’s ‘counsel could
reasonably decline to make any effort [whatsoever] to
review the file.’ Id. at 389-390, 125 S. Ct. 2456. The
Court expressly acknowledged that in situations in which
190
the prosecutor does not intend to use a defendant’s prior
conviction in the manner as in Rompilla v. Beard, a
different assessment of reasonableness might well be
warranted. Id. at 390, 125 S. Ct. 2456. And, so it is in this
case.
“In the present order denying Barker the sought
relief, the habeas court made relevant findings in regard to
the issue of the reasonableness of trial counsel’s
investigation, including but not limited to: trial counsel,
who had been a member of the Georgia bar since 1991, was
on a list of appointed counsel and had done predominantly
criminal work; at the time of representing Barker, counsel
had been second defense chair at criminal jury trials and
had handled at least 100 guilty pleas; prior to representing
Barker, counsel had handled a similar case involving a
defendant’s exposure to punishment of life without the
possibility of parole based upon a drug statute; it was
obvious to counsel that the State intended to pursue
recidivist treatment, if possible, as the charging instrument
referenced Barker’s prior convictions; counsel researched
Barker’s previous pleas, which involved counsel physically
going to the clerk’s office, taking the list of prior
convictions, and reviewing every file to see if a certified
copy of each previous conviction existed; counsel was able
to verify that the pleas were ‘factually entered’; the pleas
were purportedly signed by Barker, and entered in the court
record as part of the clerk’s file; during consultation with
Barker, counsel discussed the gravity of Barker’s situation
arising from his prior convictions; counsel’s normal
practice was to go over a defendant’s possible punishment,
including the impact of any previous convictions; counsel
sent Barker a letter outlining the way he would be
sentenced based upon his prior convictions; counsel was
confident that Barker was aware of the trial court’s lack of
discretion in sentencing should Barker be convicted;
Barker was very helpful in trying to think of things with
191
which to differentiate his case from others in order to avoid
a sentence of life without parole, but he never made any
claim that his prior convictions were improper; and the
issue of possible irregularity with any of the prior pleas had
never arisen until it was raised by Barker’s habeas counsel.
What is more, evidence of a routine or standard practice or
procedure of the court in which the pleas are entered can be
used in demonstrating compliance with constitutional
standards. Bazemore v. State, 273 Ga. 160, 162(1), 535
S.E.2d 760 (2000); Jackson v. Hopper, 243 Ga. 41, 42, 252
S.E.2d 467 (1979). And, the habeas court additionally
found that trial counsel had experience with guilty pleas in
the county of Barker’s prior convictions and with the judge
who sentenced Barker in conjunction with his prior guilty
pleas: counsel practiced before that judge from 1991 until
the judge’s death approximately ten years later, and spent
an extensive amount of time in various capacities in front
of that judge; the judge had a standard way of doing things,
including a normal routine with handling guilty pleas; in
fact, a written checklist of the Boykin rights was kept in the
courtroom.
“The habeas court found no requirement that trial
counsel research every aspect of the colloquy of each of
Barker’s prior guilty pleas, and based upon the
circumstances of record, concluded that trial counsel was
not ineffective as counsel had made reasonable efforts to
obtain and review Barker’s prior convictions to ensure
their validity. This Court likewise declines to, as Barker in
essence urges, impose an absolute duty upon defense trial
counsel when representing a recidivist to retrieve and
review transcripts of prior plea proceedings or otherwise be
deemed ineffective. This is not only unwarranted as a
matter of law, but in many instances, would prove
unworkable as a matter of fact.”
290 Ga. at 713-15, 723 S.E.2d at 908-09.
192
The analysis used by the Supreme Court of Georgia is applicable
to the facts in this case. In this case, the facts surrounding Perkins’s
1991 rape conviction were introduced, in depth, during the guilt
proceedings. Counsel was not ineffective for failing to “research every
aspect” and challenge Perkins’s 1991 conviction by filing a collateral
proceeding in another county during Perkins’s capital-murder
proceedings. See Barker v. Barrow. Based on the record in this case,
we cannot say that counsel’s actions were unreasonable.
Moreover, at the penalty phase of Perkins’s trial, the State
introduced evidence that Perkins had a 1983 conviction for seconddegree rape and a 1991 conviction for first-degree rape. On direct
appeal, Perkins argued that his two prior convictions had been
improperly used to support the aggravating circumstance that Perkins
had previously been convicted of a crime of violence. Perkins, 808 So.
2d at 1121-22. Contrary to Perkins’s assertions, his 1991 conviction
was not the only conviction used to support the aggravating
circumstance that he had previously been convicted of a crime of
violence. At the penalty phase, testimony was presented that in 1983
Perkins was convicted of raping a mentally deficient 14-year-old girl.
A “crime of violence” is defined in § 13A-11-70, Ala. Code 1975, as:
“Any of the following crimes or an attempt to commit any of them,
namely, murder, manslaughter (except manslaughter arising out of the
operation of a vehicle), rape, mayhem, assault with intent to rob, assault
with intent to ravish, assault with intent to murder, robbery, burglary,
kidnapping and larceny.”
Perkins’s 1983 conviction for rape in the second degree was
sufficient, in itself, to support the aggravating circumstance that Perkins
had previously been convicted of a crime of violence. See Simmons v.
State, 797 So. 2d 1134 (Ala. Crim. App. 1999). Thus, Perkins failed to
show how he was prejudiced by counsel’s failure to specifically
challenge his 1991 conviction for rape. Perkins failed to meet his
burden of proving ineffective assistance of counsel in regard to this
claim, and relief was correctly denied.
Perkins, 144 So. 3d at 480-84.
193
As set forth above, in order to succeed on this ineffective-assistance claim,
Perkins must show that his trial counsel’s performance was defective and that he was
prejudiced by this defective performance. When reviewing a claim of ineffective
assistance of counsel in a habeas petition this court is not required to decide both
deficient performance and prejudice prongs because the petitioner’s claim will fail
if he cannot show both prongs. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000)(“Because both parts of the [Strickland] test must be satisfied in order to show
a violation of the Sixth Amendment, the court need not address the performance
prong if the defendant cannot meet the prejudice prong, or vice versa.” (citing
Strickland, 466 at 694; internal citations omitted)). Also, if the court finds, pursuant
to de novo review, that the claim is without merit, it need not discuss whether the
state court’s decision is entitled to deference. See Berghuis v. Thompkins, 560 U.S.
370, 390 (2010)(“Even if the state court used an incorrect legal standard, we need not
determine whether AEDPA’s deferential standard of review, 28 U.S.C. § 2254(d),
applies in this situation. That is because, even if AEDPA deference does not apply,
[petitioner] cannot show prejudice under de novo review, the more favorable standard
of review for [petitioner]. . . . Courts can . . . deny writs of habeas corpus under
§2254 by engaging in de novo review when it is unclear whether AEDPA deference
194
applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if
his or her claim is rejected on de novo review, see § 2254(a).”).
As to this claim – alleging that Perkins was denied the assistance of
constitutionally effective counsel because counsel failed to discover the untimelyexecuted waiver of Nolen’s conflict of interest and, thus, did not file a collateral
challenge to his conviction in Fayette County – the court finds, on de novo review,
that Perkins cannot establish prejudice; therefore, this claim will be denied.
In order to establish that trial counsel were ineffective for failing to investigate
and collaterally challenge his prior rape conviction from Fayette County, Perkins is
required to show that counsel’s deficient performance prejudiced him – that is, there
is a reasonable probability that the result of the proceeding would have been different
had his trial counsel collaterally challenged the Fayette County conviction. To make
this showing, Perkins must show as an initial matter that the collateral challenge to
the Fayette County conviction had merit.
The fact that Nolen represented Perkins and Watkins simultaneously, the fact
that Watkins’s deal depended on Perkins’s guilty plea, and the fact that Perkins
signed the waiver of Nolen’s conflict of interest after he pled guilty do not show an
actual conflict of interest sufficient to void the Fayette County rape conviction. “[I]t
was at least necessary, to void the conviction, for petitioner to establish that the
195
conflict of interest adversely affected his counsel’s performance,” Mickens v. Taylor,
535 U.S. 162, 174 (2002); that is, Nolen’s simultaneous representation of Perkins and
his uncle adversely affected Nolen’s performance as Perkins’s counsel.
Contrary to Perkins’s assertion, his Fayette County conviction is not “invalid”
based on the lack of a timely-signed waiver. In order to show that the collateral
challenge to the Fayette County conviction based on a conflict of interest would have
been successful, Perkins “must establish that an actual conflict of interest adversely
affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); see
also Molton v. State, 651 So. 2d 663, 669 (Ala. Crim. App.1994)(“The appellant did
not raise the matter of a conflict of interest on the part of his trial counsel until well
after the trial.
Consequently, in order to establish a violation of the Sixth
Amendment, he must demonstrate that an actual conflict of interest adversely affected
his lawyer’s performance.” (quoting Sullivan, 446 U.S. at 348))(internal quotations
omitted).
To prove adverse effect, a habeas petitioner must satisfy three elements.
First, he must point to some plausible alternative defense strategy or
tactic that might have been pursued. Second, he must demonstrate that
the alternative strategy or tactic was reasonable under the facts. Because
prejudice is presumed, the petitioner need not show that the defense
would necessarily have been successful if the alternative strategy or
tactic had been used, rather he only need prove that the alternative
possessed sufficient substance to be a viable alternative. Finally, he
must show some link between the actual conflict and the decision to
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forgo the alternative strategy of defense. In other words, he must
establish that the alternative defense was inherently in conflict with or
not undertaken due to the attorney’s other loyalties or interests.
Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999)(internal citations and
quotations omitted). “[Petitioner] must make a factual showing of inconsistent
interests and must demonstrate that the attorney ‘made a choice between possible
alternative courses of action, such as eliciting (or failing to elicit) evidence helpful
to one client but harmful to the other. If he did not make such a choice, the conflict
remained hypothetical.’” United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.
1983)(quoting Comment, Conflict of Interests in Multiple Representation of Criminal
Co-Defendants, 68 J. CRIM. L. & CRIMINOLOGY 226, 232 (1977)). Generally,
. . . cases reversing convictions on the ground of actual conflict of
interest could be classified as falling into at least one of three rubrics:
(1) the conflict was brought to the trial court’s attention at
the outset of the trial or at the time when the conflict first
became apparent; (2) one defendant had evidence that
would have exculpated himself but inculpated a
codefendant; (3) the prosecution’s evidence offered
defendant a theory under which he could prove his own
innocence by proving his codefendant’s guilt.
Id. (quoting United States v. Benavidez, 664 F.2d 1256, 1259 (5th Cir. 1982)).
None of these “rubrics” have been shown in this case; therefore, the court finds
that Perkins has not shown an actual conflict sufficient to support the reversal of his
197
Fayette County rape conviction. No one involved in Perkins’s Fayette County case
objected to Nolen’s representation of Perkins or otherwise “brought [the alleged
conflict] to the trial court’s attention at the outset of the trial or at the time when the
conflict first became apparent.” Benavidez, 664 F.2d at 1259. Nothing in Nolen’s
Affidavit or otherwise shows that Watkins “had evidence that would have exculpated
himself but inculpated [Perkins].” See id. Moreover, proof of Perkins’s guilt on the
rape charge was required to prove Watkins’s guilt on a hindering-prosecution charge,
see Nichols v. State, 500 So. 2d 92, 94-95 (Ala. Crim. App. 1986);34 therefore, “the
34
In Alabama –
Despite the fact that in the instant case the offense of hindering
prosecution and the offense of rape are separate offenses, as the trial
court indicated, an adequate presentation of the facts and evidence in the
[hindering prosecution] case would necessitate that some testimony
would refer to the underlying [rape] prosecution that was alleged to have
been hindered; in essence, the appellant is charged with hindering the
prosecution of a case of rape in the first degree. It seems clear from the
language of the statutes that the State must prove three separate elements
to present a prima facie case of hindering prosecution. The actor must
“render criminal assistance” as that term is defined in § 13A-10-42,
1975 Alabama Code (Supp. 1981), the criminal assistance must be
rendered to one who has committed a Class A or Class B felony or
murder and the actor must know or believe that such person has engaged
in conduct constituting the Class A or Class B felony or murder. . . . In
proving the two latter issues, some evidence of the Class A or Class B
felony or murder must be proved. Obviously, one cannot hinder the
prosecution or conviction of another for [a] crime unless a crime
actually occurred. . . . The interrelationship and activities that lead to
the involvement between the person accused or convicted of the felony
198
prosecution’s evidence [did not] offer[ ] Watkins a theory under which he could prove
his own innocence by proving [Perkins’s] guilt,” see Benavidez, 664 F.2d at 1259.
Perkins’s waiver of Nolen’s conflict of interest, signed the day after he entered
his plea of guilty does not demonstrate an actual conflict of interest based on Nolen’s
representation of Perkins of the B.P. rape charge and Watkins on the charge of
hindering the prosecution of Perkins on the rape charge. He has shown only that
Nolen represented two defendants in related cases and that one defendant’s deal
required the antecedent guilty plea of the other defendant – which in the context of
claims of hindering prosecution is not indicative of an actual conflict of interest
adversely affecting Nolen’s representation. Because Perkins has not shown that the
Fayette County rape conviction was “invalid” based on an actual conflict of interest
and an untimely waiver, he has not shown that earlier discovery of the untimely
and the other individual give rise to the charge of hindering prosecution
and, as such, are relevant in a trial for hindering prosecution.
The State has the burden of proving beyond a reasonable doubt
that the person whose prosecution was hindered actually committed the
felony. . . . Thus, the underlying crime is an essential element of the
offense of hindering prosecution and must be adequately proved.
Nichols v. State, 500 So. 2d 92, 94-95 (Ala. Crim. App. 1986)(internal citations,
footnote, and quotations omitted).
199
waiver by his trial attorneys would have made any difference in his conviction and/or
sentence in the instant case. Thus, there is no Strickland prejudice.
From the beginning of their representation of Perkins, Smith and Steverson,
Perkins’s trial counsel, knew that Perkins had raped B.P. and that he had pled guilty
to that crime. They knew that, as a result of his guilty plea, he was sentenced to 99
years in prison. However, before sentencing in the capital case, trial counsel learned
that Nolen, Perkins’s counsel in the Fayette County case, obtained a waiver of any
conflict of interest between his representation of Perkins and his representation of
Perkins’s uncle, who had been charged with hindering the prosecution of Perkins for
the rape of B.P. The waiver was signed the day after Perkins had pled guilty in
Fayette County. Although the waiver was obtained after Perkins’s plea, that fact
alone does not establish that trial counsel’s failure to collaterally challenge the
Fayette County conviction prejudiced Perkins. Indeed, the untimely-executed waiver,
standing alone, does not establish an actual conflict that adversely affected Fayette
County counsel’s performance.
Nothing indicates that Perkins has ever denied raping B.P. or that, had the
conflict not existed, he would not have pled guilty. Perkins alleges, “Nolen had an
active conflict because he could not get Raymond Watkins a favorable plea deal
unless he counseled Perkins to plead guilty to first-degree rape.” (Doc. 1 ¶ 230.)
200
Such a statement implies that Perkins had other options and that he would not have
pled guilty unless encouraged by Nolen because of Nolen’s desire to get a good deal
for Watkins. This conjecture regarding the outcome of a collateral attack on the
Fayette County rape conviction is insufficient to establish prejudice based on the
alleged deficient performance of Steverson and Smith in discovering the untimelyexecuted waiver. Assuming that reasonable counsel, knowing what trial counsel
knew, would have collaterally challenged the Fayette County conviction, there is no
reasonable probability that the result of the capital case would have been different.
Given the fact that Perkins does not deny raping B.P. and he does not allege that he
would not have pled guilty to first degree rape, he has not shown a reasonable
possibility that at the time of his capital sentencing he would not have a felony
conviction for the first degree rape of B.P.
Therefore, this claim will be denied.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
201
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
G. THE JURY’S CONSIDERATION OF EXTRINSIC EVIDENCE – THE
BIBLE IN THE JURY ROOM
Perkins contends that he “was denied a fair trial and reliable determination of
sentence,” in violation of the Due Process Clause because the jury “consulted biblical
passages prior to and during its sentencing deliberations.” (Doc. 1 ¶ 285.) According
to Perkins –
287. During the trial, the jurors were sequestered at a hotel.
[(Doc. 10, Vol. 63 at 337.)] As [J.T., a juror in Perkins’s trial,]
explained, the jurors gathered as a group at the hotel on the Sunday of
the trial and conducted their own religious service. [(Id. at 378.)] They
prayed together and read from the Bible, and two of the jurors preached
to the others. [(Id. at 378; id., Vol. 64 at 405.)] One juror preached
about the “eye for an eye” passage, [(id., Vol. 63 at 378-79; id., Vol. 64
at 405)], conveying the message that “if you kill someone, you should
expect to be killed,” [(id., Vol. 63 at 379)].
288. During deliberations the following day, the jurors addressed
the issue of Perkins’s punishment. Several of the female jurors were
hesitant to vote for a death sentence. [(Id., Vol. 64 at 384-85.)] Because
of the disagreement, some jurors read aloud from Bibles that they had
brought with them into the jury room. [(Id. at 384, 389-91.)] They
focused on the “eye for an eye” passage “to let the women know that,
you know, you do the crime you should have to . . . pay for it.” [(Id. at
384.)] After further reading, discussion, and prayers, the jurors took
another vote on the question of Perkins’s punishment. Several of the
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jurors who had previously voted in favor of a life sentence changed their
votes, now voting for the death penalty. [(Id. at 384, 390.)]
(Doc. 1 ¶¶ 287-88.) The only Bible passage J.T. remembered specifically being
discussed was “the one that was the eye for an eye.” (Doc. 10, Vol 64 at 384.)
However, he testified that he had based his decision to impose the death penalty “on
the evidence and what all [he had] heard in the . . . trial,” and that the readings from
the Bible did not help him make his decision. (Id. at 393, 395.) No other juror
testified at the Rule 32 hearing.
The Alabama Court of Criminal Appeals held, “J.T. testified that the Bible had
no impact on his verdict in the penalty phase. No other jurors testified. Without
more, this Court cannot say that the [trial] court abused its discretion in finding that
Perkins failed to establish prejudice. Accordingly, this claim does not entitle Perkins
to any relief.” Perkins, 144 So. 3d at 494-99.
Perkins was “entitled to a verdict based on the independent judgment of twelve
jurors. Jury deliberations are kept private and secret to ensure that the verdict
represents the judgment of a properly constituted jury and is not affected by outside
influences or matters extrinsic to evidence presented at trial.” United States v.
Watson, 669 F.2d 1374, 1391 (11th Cir. 1982). The Supreme Court “generally [has]
203
analyzed outside intrusions upon the jury for prejudicial impact.” United States v.
Olano, 507 U.S. 725, 738 (1993)(citations omitted).
“[D]ue process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that
the rule, few trials would be constitutionally acceptable. . . . [I]t
is virtually impossible to shield jurors from every contact or
influence that might theoretically affect their vote. Due process
means a jury capable and willing to decide the case solely on the
evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such
occurrences when they happen.” [Smith v. Phillips], [455 U.S.
209,] 217, 102 S. Ct. [940,] 946 [(1982)].
There may be cases where an intrusion should be presumed prejudicial,
see, e.g., Patton, supra, 467 U.S., at 1031-1035, 104 S. Ct., at
2888-2890; Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed.
2d 424 (1965), but a presumption of prejudice as opposed to a specific
analysis does not change the ultimate inquiry: Did the intrusion affect
the jury’s deliberations and thereby its verdict?
Id. at 738-39 (emphasis added). When a defendant alleges improper intrusion upon
a jury’s deliberations, generally “courts apply a settled two-step framework.” See
Godoy v. Spearman, 861 F.3d 956, 959 (9th Cir. 2017).
At step one, the court asks whether the contact was possibly prejudicial,
meaning it had a tendency to be injurious to the defendant. If so, the
contact is deemed presumptively prejudicial and the court proceeds to
step two, where the burden rests heavily upon the state to establish the
contact was, in fact, harmless. If the state does not show harmlessness,
the court must grant the defendant a new trial. When the presumption
arises but the prejudicial effect of the contact is unclear from the
existing record, the trial court must hold a hearing to determine the
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circumstances of the contact, the impact thereof upon the juror, and
whether or not it was prejudicial.
Id. (quoting Remmer v. United States, 347 U.S. 227, 229-30 and Mattox v. United
States, 146 U.S. 140, 150 (1892), called into doubt on other grounds by Warger v.
Shauers, 135 S. Ct. 521, 526-27 (2014))(internal quotations and citations omitted;
emphasis added).
In this case, the trial court held such a hearing as part of the Rule 32 hearing.
The only juror to testify was J.T. He testified that the service on Sunday “didn’t have
an effect on [him].” (Doc. 10, Vol. 63 at 379 to Vol. 64 at 380.) Also, the only
specific Bible passage he could recall being discussed in the jury room was “the eye
for an eye.”35 (Id., Vol. 64 at 391.) This Bible verse was also referenced by counsel
and prospective jurors during voir dire. (See id., Vol. 6 at 796; id., Vol. 7 at 875, 881,
982, 998, 999, 1002; id., Vol. 8 at 1096, 1224; id., Vol. 9 at 1231, 1246-47, 1322; id.,
Vol. 10 at 1469-70). The court finds that the “eye for an eye” Bible verse is within
the common knowledge of all jurors and had specifically been discussed with them
during jury selection. While the jury was discussing whether Perkins should receive
35
Exodus 21:23-25: “But if there is serious injury, you are to take life for life,
eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for
wound, bruise for bruise.”
205
the death penalty, the jury “said a little prayer . . . to try to ease our mind, to comfort
us into making that decision.” (Id., Vol. 64 at 384.)
The only juror to testify, J.T., did not have a Bible in the jury room and he did
not read a Bible in the jury room. (Id. at 390.) He based his decision “on the
evidence and what all [he] heard in the . . . trial.” (Id. at 393; see also id. at 395.)
The court finds that Perkins has not established, through J.T.’s testimony, possible
prejudice caused by the jury’s contact with the Bible and prayer during deliberations,
even if it there was an intrusion.
Based on this evidence, the court finds that Perkins is not entitled to any relief
based on his claim that he was denied a fair trial by the jury’s consideration of
Biblical references external to evidence and instructions presented at trial.
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
206
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
H. PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS
DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT
Perkins claims that he is intellectually disabled and, therefore, his execution
would violate the Eighth Amendment. (See doc. 1 ¶ 299.) After the Alabama
Supreme Court affirmed Perkins’s conviction on direct appeal and while his petition
for certiorari review was pending before the United States Supreme Court, the Court
decided Atkins v. Virginia, which held, “Construing and applying the Eighth
Amendment in the light of our evolving standards of decency, we . . . conclude that
[the death penalty] is excessive [punishment] and that the Constitution places a
substantive restriction on the State’s power to take the life of a mentally retarded
offender.” Atkins v. Virginia, 536 U.S. 304, 321 (2002)(internal quotations omitted).
The Court vacated the Alabama Supreme Court’s affirmance of Perkins’s conviction
and remanded his case for further consideration in light of Atkins. Perkins v.
Alabama, 536 U.S. 953 (2002).
On remand, the Alabama Supreme Court
“conclude[d] that Perkins does not suffer from mental retardation under the
definitions considered by the United States Supreme Court in reaching its holding in
Atkins or as defined by any of the state statutes that prohibit the imposition of the
207
death sentence on a mentally retarded defendant.” Ex parte Perkins, 851 So. 2d 453,
455-56 (Ala. 2002)(footnotes omitted).
In his habeas petition, Perkins argues that the Alabama Supreme Court’s
decision on remand was “contrary to and an unreasonable application of Atkins, 28
U.S.C. § 2254(d)(1), and also an unreasonable determination of the facts, 28 U.S.C.
§ 2254(d)(2).” (Id. ¶ 313.) Specifically, he argues:
314. First, while the Alabama court relied on evidence presented
by the defense at trial, it failed to recognize that the defense did not have
a strong interest at trial in highlighting the extent of Perkins’s
intellectual disability. The United States Supreme Court recognized in
Atkins itself that without Atkins, capital defendants had very different
incentives in this regard. See Atkins, 536 U.S. at 321 (“reliance on
mental retardation as a mitigating factor can be a two-edged sword”);
see also Bobby v. Bies, 556 U.S. 825, 836 (2009)(citing Atkins for the
proposition that “[m]ental retardation as a mitigator and mental
retardation under Atkins [ ] are discrete legal issues”); id. (noting that
Atkins “substantially altered” the parties’ incentives in terms of evidence
of intellectual disability). The Alabama court’s assumption that the
evidence presented at trial provided a complete portrait of Perkins’s
intellectual ability was an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2). See Wiggins v. Smith, 539 U.S. 510, 528 (2003)
(holding that the state court’s incorrect assumption that records
contained certain information was an unreasonable determination of the
facts).
315. Second, given that Perkins did not have a strong interest in
presenting a low IQ score at trial, the Alabama court placed far too much
emphasis on the rigid number of 76, the score Perkins obtained on the
WAIS-R in 1994. The clinical definitions of intellectual disability on
which the United States Supreme Court relied in Atkins have long
recognized the standard error of measurement, meaning that IQ scores
208
are properly understood as the midpoint in a range, not a defining
number. See Atkins, 536 U.S. at 308 n.3. The Court elaborated on this
point in Hall v. Florida, [572 U.S. 701] (2014), stating the following:
“The clinical definitions of intellectual disability, which take into
account that IQ scores represent a range, not a fixed number, were a
fundamental premise of Atkins. And those clinical definitions have long
included the SEM.” Id. at [720]. The Alabama court’s dismissal of
Perkins’s 76 in an analysis requiring a score of “70 or lower” is contrary
to and an unreasonable application of Atkins and Hall.
316. In addition, factors such as the Flynn effect, which
recognizes that scores must be adjusted as tests get older,36 are critical
36
“The Flynn Effect ‘is a phenomenon positing that, over time, standardized IQ
test scores tend to increase with the age of the test without a corresponding increase
in actual intelligence in the general population. Those who follow the Flynn effect
adjust for it by deducting from the IQ score a specified amount [0.3] for each year
since the test was normalized.’” In re Cathey, 857 F.3d 221, 227 (5th Cir. 2017); see
Burgess v. Commn’r. Ala. Dep’t of Corr., 723 F.3d 1308, 1321 n.16 (11th Cir.
2013)(“The Flynn effect acknowledges that as an intelligence test ages, or moves
farther from the date on which it was standardized, or normed, the mean score of the
population as a whole on that assessment instrument increases, thereby artificially
inflating the IQ scores of individual test subjects. Therefore, the IQ test scores must
be recalibrated to keep all test subjects on a level playing field.” (quoting Thomas v.
Allen, 607 F.3d 749, 753 (11th Cir. 2010)))(internal quotations omitted). The
Eleventh Circuit has held:
(1) a district court is not required to apply a Flynn effect reduction to an
individual’s IQ score in a death penalty case; (2) a district court should
consider all of the expert medical testimony, including evidence about
the Flynn effect, and make its own fact findings; and (3) as in Thomas
[v. Allen], a district court’s application or rejection of the Flynn effect
constitutes a fact-finding subject to review only for clear error. The
district court should consider and weigh the expert testimony presented
in each case. The assessment of an individual’s intellectual functioning
is a fact-specific inquiry that often requires the fact-finder to weigh
competing expert opinions. As long as the district court’s ultimate
209
to a proper understanding of an IQ score. Although the State of
Alabama has acknowledged in other cases that the SEM and the Flynn
effect are proven statistical phenomena, the Alabama court did not
account for either when relying on Perkins’s 76 and refusing to consider
additional evidence. Because Atkins clearly established that intellectual
disability is to be based on “clinical definitions,” Atkins, 536 U.S. at
318, the Alabama court’s disregard of established clinical phenomena
was contrary to or involved an unreasonable application of Atkins under
28 U.S.C. § 2254(d)(1). Cf. Panetti v. Quarterman, 551 U.S. 930,
950-51 (2007) (holding that the state court unreasonably applied federal
law governing competency by failing to provide the petitioner an
“opportunity to submit psychiatric evidence” to rebut the government’s
evidence).
determination regarding the Flynn effect is plausible in light of the
record viewed in its entirety, there will be no clear error.
Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 640
(11th Cir. 2016)(internal citations omitted), cert. denied 137 S. Ct. 1432 (2017).
Alabama courts are not required to employ the Flynn effect when calculating
a criminal defendant’s IQ score:
This Court has repeatedly held that a circuit court is not required to
accept, consider, or apply the “Flynn Effect” in determining intellectual
disability. See Carroll v. State, 215 So. 3d 1135, 1151 (Ala. Crim. App.
2015)(“[T]he circuit court could have reasonably rejected the ‘Flynn
Effect.’”); Smith v. State, 112 So. 3d 1108, 1131 (Ala. Crim. App. 2012)
(“[T]his Court has previously held on several occasions that a trial court
need not accept the ‘Flynn Effect’ as binding, and that it has not been
accepted as scientifically valid by all courts.”); and Albarran v. State, 96
So. 3d 131, 200 (Ala. Crim. App. 2011)(“[T]he circuit court could have
reasonably rejected the ‘Flynn Effect.’”).
Reeves v. State, 226 So. 3d 711, 739 (Ala. Crim. App. 2016).
210
317. Third, the Alabama court held that Perkins is not
intellectually disabled because he got married, earned a GED, and
worked as an electrician “for a short while.” Ex parte Perkins, 851 So.
2d at 456. That finding is unreasonable. In Atkins, the Court quoted the
definitions of adaptive functioning from the American Association on
Mental Retardation and the American Psychiatric Association. See
Atkins, 536 U.S. at 308 n.3. Both list numerous areas – including
communication, self-care, home living, social skills, self-direction,
functional academics, health and safety, and work – and state that a
person would meet the adaptive deficits criterion if he has significant
limitations in any two of those areas. Id. Thus, the fact that an
individual can get married or take on certain tasks does not mean the
individual is not intellectually disabled. See Holladay, 555 F.3d at 1363
(“Individuals with mental retardation have strengths and weaknesses,
like all individuals.”); see also Thomas, 607 F.3d at 759 (holding that
the petitioner was intellectually disabled even though he had held
several jobs and noting that even the State’s expert testified that
“mentally retarded persons can drive cars and hold menial jobs”).
Moreover, because Perkins did not have an interest in presenting
evidence of the full extent of his adaptive functioning deficits at trial,
the court’s assumptions are based on an unreasonably incomplete
understanding of the issue. Cf. Panetti, 551 U.S. at 954 (holding state
court’s factfinding procedures “seriously inadequate for the
ascertainment of the truth” (citation and internal quotation marks
omitted)).
(Doc. 1 ¶¶ 314-17 [footnote added; original footnote omitted].)
Perkins asked the Alabama Supreme Court for an opportunity to present
evidence that he was intellectually disabled; however, the court denied his request.
The court held:
We have conducted a thorough review of the record to determine
if there is any inference that Perkins is mentally retarded. Although the
Legislature has not had an occasion to address this State’s policy on this
211
matter and establish a procedure for determining whether a capital
defendant is mentally retarded and, therefore, not subject to the death
penalty, we conclude that Perkins does not suffer from mental
retardation under the definitions considered by the United States
Supreme Court in reaching its holding in Atkins[, 536 U.S. at 309 n.3,]
or as defined by any of the state statutes that prohibit the imposition of
the death sentence on a mentally retarded defendant.
We agree with the State that this Court can determine, based on
the facts presented at Perkins’s trial, that Perkins, even under the
broadest definition of mental retardation, is not mentally retarded.
Those states with statutes prohibiting the execution of a mentally
retarded defendant require that a defendant, to be considered mentally
retarded, must have significantly subaverage intellectual functioning (an
IQ of 70 or below), and significant or substantial deficits in adaptive
behavior. Additionally, these problems must have manifested
themselves during the developmental period (i.e., before the defendant
reached age 18).
The record establishes that Dr. John Goff, a licensed clinical
neuropsychologist and clinical psychologist, testified on Perkins’s
behalf. According to Dr. Goff, Perkins, when tested as an adult, has a
full-score IQ of 76, with a verbal score of 80 and a performance score
of 74. Dr. Goff stated that Perkins’s IQ scores indicate a borderline
range of psychometric intelligence, and that his intellectual functioning
has probably declined as he has aged because of his abuse of alcohol.
Moreover, the record indicates that Perkins earned a GED certificate
while he has been in prison and has completed community college
courses there. Dr. Goff diagnosed Perkins with a borderline personality
disorder and an alcohol dependence; he did not conclude that Perkins
was mentally retarded. We find Dr. Goff’s diagnosis pivotal in light of
the fact that, when the penalty phase of Perkins’s trial was conducted,
Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989), and its progeny were applicable, and evidence of mental
retardation established a strong mitigating circumstance to be considered
in determining the appropriate sentence. [Footnote 4]
212
[Footnote 4] Penry has been abrogated by Atkins.
Additionally, the evidence presented at trial indicates that Perkins
did not exhibit “significant” or “substantial” deficits in adaptive
behavior before or after age 18. Perkins was able to have interpersonal
relationships. Indeed, he was married for 10 years. He maintained a job
as an electrician for a short period. Perkins did not present any evidence
during the penalty phase of his trial to establish that he was mentally
retarded. The record does not create any inference that Perkins is
mentally retarded. Because Perkins cannot establish the common
requirements for mental retardation, we reject Perkins’s contention that
we must remand this cause for resentencing.
...
Applying the plain-error standard of review, we hold that because,
applying the most common definitions of mental retardation, we find no
indication in the record that Perkins is mentally retarded, no reversible
error occurred and the imposition of the death sentence in this case is
not unconstitutional. Therefore, we affirm the judgment of the trial
court sentencing Perkins to death.
Ex parte Perkins, 851 So. 2d at 455-57, cert. denied 540 U.S. 830 (2003).
The state court’s determination that Perkins is not intellectually disabled is a
finding of fact entitled to deference under the AEDPA. See Ledford v. Warden,
GDCP, 818 F.3d 600, 632 (11th Cir. 2016). “As the Court noted in Atkins, the
medical community defines intellectual disability according to three criteria:
significantly subaverage intellectual functioning, deficits in adaptive functioning (the
inability to learn basic skills and adjust behavior to changing circumstances), and
onset of these deficits during the developmental period.” Hall, 572 U.S. at 710
213
(citing, inter alia, Atkins, 536 U.S. at 308 n.3). “In the context of a formal
assessment, the existence of concurrent deficits in intellectual and adaptive
functioning has long been the defining characteristic of intellectual disability.” Id.
(internal quotations and citation omitted). The Alabama Supreme Court has held:
In Ex parte Perkins, we concluded that the “broadest” definition of
mental retardation consists of the following three factors: (1)
significantly subaverage intellectual functioning (i.e., an IQ of 70 or
below); (2) significant or substantial deficits in adaptive behavior; and
(3) the manifestation of these problems during the defendant’s
developmental period (i.e., before the defendant reached age 18). 851
So. 2d at 456. All three factors must be met in order for a person to be
classified as mentally retarded for purposes of an Atkins claim.
Smith v. State, 213 So. 3d 239, 248 (Ala. 2007); see also Ala. Code § 15-242(3)(defining “intellectually disabled person” for purposes of the “Intellectually
Disabled Defendant Act” as, “A person with [1] significant subaverage general
intellectual functioning [2] resulting in or associated with concurrent impairments in
adaptive behavior and [3] manifested during the developmental period, as measured
by appropriate standardized testing instruments”). For the reasons set forth below,
the court finds that Perkins has failed to show that the state court’s determination –
that he is not intellectually disabled – was “an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,” see 28 U.S.C. §
2254(d)(2).
214
1. The IQ Test Score – Intellectual Functioning
Dr. John Goff, a licensed clinical neuropsychologist, testified on Perkins behalf
during the penalty phase of his trial. Dr. Goff testified that he administered the
WAIS-R test to Perkins and that Perkins got a full scale score of 76, a verbal score
of 80, and a performance score of 74. (See doc. 10, Vol 17, Tab 31 at 2868-69; id.,
Vol. 63 at 363; see also id., Vol. 2 at 323.) During the penalty phase, Dr. Goff
testified that Perkins’s IQ score placed him in the borderline range of intellectual
functioning. (Id., Vol. 17, Tab 31, at 2868-69.) At the Rule 32 hearing, he testified
that, based on his evaluation of Perkins in 1994, he did not believe Perkins was
intellectually disabled. (Id., Vol. 63 at 363-65.) This is the only evidence of IQ
testing or expert testimony regarding Perkins’s intellectual functioning in the record
before this court.
Perkins contends that the Alabama court erred by failing to adjust his IQ score
based on the Flynn effect and the standard error of measurement [SEM]. (Doc. 1 ¶
316.) The failure to consider the Flynn effect does not make the Alabama court’s
finding with regard to Perkins intellectual functioning “unreasonable.” See Ledford,
818 F.3d at 637; Reeves, 226 So. 3d at 739. Also, the Alabama court’s failure to
account for the SEM does not support a finding that its determination of Perkins’s
intellectual functioning was unreasonable given the fact that Dr. Goff, Perkins’s trial
215
expert, testified that Perkins is not intellectually disabled and that his intellectual
functioning was in the borderline range. A diagnosis of borderline intellectual
functioning “is mutually exclusive of [a diagnosis of] mental retardation.” Jordan v.
Comm’r of Soc. Sec. Admin., 470 Fed. Appx. 766, 768-69 (11th Cir. 2012)(citing Am.
Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
47-48, 741 (4th ed. text rev. 2000)).
The professionals who design, administer, and interpret IQ tests
have agreed, for years now, that IQ test scores should be read not as a
single fixed number but as a range. Each IQ test has a “standard error
of measurement,” often referred to by the abbreviation “SEM.” A test’s
SEM is a statistical fact, a reflection of the inherent imprecision of the
test itself. An individual’s IQ test score on any given exam may
fluctuate for a variety of reasons. These include the test-taker’s health;
practice from earlier tests; the environment or location of the test; the
examiner’s demeanor; the subjective judgment involved in scoring
certain questions on the exam; and simple lucky guessing.
The SEM reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score. For purposes
of most IQ tests, the SEM means that an individual’s score is best
understood as a range of scores on either side of the recorded score.
The SEM allows clinicians to calculate a range within which one may
say an individual’s true IQ score lies.
Hall, 572 U.S. at 712-13 (internal citations omitted; emphasis added). The SEM for
the IQ test given to Perkins, the WAIS-R, is ±5. Applied to Perkins’s full-scale score
of 76, the range of IQ scores within which was his “true IQ” fell was 71 to 81 (765=71; 76+5=81). Dr. Goff reported that Perkins’s IQ scores were valid and that they
216
represented “fairly consistent performance within the borderline range of
psychometric intelligence.” (Doc 10, Vol. 2 at 323 [emphasis added].) As Dr. Goff
testified that Perkins’s IQ was in the borderline range, the application of the SEM is
not necessary to determine the “range” of Perkins’s intellectual functioning.
Dr. Goff’s report, which was before the Alabama courts, stated that Perkins’s
results on the WAIS-R indicated that his IQ was “within the borderline range,” and
that his “full scale score [76] is probably a valid estimate at that level.” (Id. at 323,
326.) He also stated, “This patient is currently functioning within the borderline
range of psychometric intelligence. This probably represents something of a decline
from previous levels of function. The patterns of performance seen in this patient are
frequently encountered among patients with long-term histories of alcohol abuse.”
(Id. at 326 [emphasis added]; see also id. at 327.) At the Rule 32 hearing, Dr. Goff
again testified that Perkins was not intellectually disabled. (See doc. 10, Vol. 63 at
363-65.)
The court finds that the Alabama Supreme Court’s failure to consider Perkins’s
IQ to be within the range of intellectually disabled, based on application of the SEM,
or to reduce his score to account for the Flynn effect, was not unreasonable and does
not provide a basis for relief.
217
2. Adaptive Functioning
The Alabama court found no evidence in the record that Perkins had
“‘significant’ or ‘substantial’ deficits in adaptive behavior before or after age 18,”
noting “Perkins was able to have interpersonal relationships,” including being
married for ten years,” and that he had worked “as an electrician for a short period.”37
Ex parte Perkins, 851 So. 2d at 456. Perkins contends, “the fact that an individual
can get married or take on certain tasks does not mean the individual is not
intellectually disabled.” (Doc. 1 ¶ 317.) The court does not disagree. However,
working as an electrician requires greater intellectual functioning than merely
“tak[ing] on certain tasks” or performing simple or menial tasks. The Alabama court
37
Perkins began working as an electrician when he was released from prison in
May 1990. (See doc. 10, Vol. 2, Tab 3 at 314. He apparently stopped working as an
electrician at or around the time he murdered Mrs. Gilliam in August 1990. (Id. at
315.) Dr. Goff reported Perkins –
says he worked [with an electrical company] for about four months. He
indicated that there was a disagreement about a car that he had borrowed
and he felt that he was going to be violated (that he had violated his
parole) and he began drinking heavily. The patient indicates that over
a period of approximately two weeks he was heavily intoxicated and it
was during that period of time that the events leading to his arrest
occurred.
(Id. at 320.) Nothing in the record indicates that Perkins stopped working as an
electrician because of difficulties with performing his job duties due to some factor
other than intoxication.
218
could reasonably determine that the ability to learn the craft and to work as an
electrician rebuts Perkins’s assertion that he has significant or substantial deficits in
adaptive behavior.
“The adaptive impairment prong of an intellectual disability diagnosis requires
an evaluation of the individual’s ability to function across a variety of dimensions.”
Brumfield v. Cain, 135 S. Ct. 2269, 2279 (2015). The record in this case contains
evidence that, “[w]hile on parole for approximately three months in 1990, [Perkins]
was employed as an electrician at Miller Electric Company. (Doc. 10, Vol. 2 at 315.)
The job of electrician is a skilled craft, requiring significant training and the
performance of complex tasks.
See Clapper v. Comm’r of Soc. Sec., No.
4:17-CV-00401-JHE, 2018 WL 4568615, *7, 9, and n.11 (N.D. Ala. Sept. 24,
2018)(noting work as electrician and electrician’s helper is skilled or semi-skilled
work and that claimant’s “ability to do skilled electrician or electrician’s helper work
prior to age 22 supported that he had no discernable significant subaverage
intellectual functioning or any deficit in adaptive functioning prior to that age”). This
court finds that the state court could reasonably determine that work as an electrician
was inconsistent with any claim that Perkins is intellectually disabled. Perkins has
not argued otherwise to this court.
219
Also, as set forth above, the only expert opinion as to Perkins’s level of
intellectual ability is Dr. Goff’s opinion that Perkins is not intellectually disabled.
Therefore, the court finds that Perkins is not entitled to relief on this ground.
3. Failure to Grant Evidentiary Hearing
Perkins contends that he was denied the opportunity to submit evidence to
establish his intellectual disability and, “because [his Atkins] claim hinges on factual
matters and Perkins was denied an opportunity to develop the factual record in state
court, an evidentiary hearing is appropriate.” (Doc. 1 ¶ 318 [citing 28 U.S.C. §
2254(e)].). Section 2254(e) states:
(e)(1) In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court,
a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary hearing
on the claim unless the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
220
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2254(e).
Recognizing that “evidence presented pre-Atkins may not in every case be
conducive to an Atkins inquiry and may not enable a court to make reasonable factual
determinations relating to mental retardation for the purposes of the Eighth
Amendment,” the court finds, in this case, the record provided a “concrete, verifiable
IQ score” and unequivocal expert testimony that Perkins’s IQ was within the
borderline range. See Burgess v. Comm’r, Alabama Dep’t of Corr., 723 F.3d 1308,
13161, 1317 (11th Cir. 2013). The Alabama Supreme Court was not required to
allow Perkins an opportunity to present additional evidence that he was intellectually
disabled because the record evidence that he was not intellectually disabled was
adequate to support its finding. Although Perkins asked the Alabama Supreme Court
to allow him to submit additional evidence, he did not make any offer of proof to that
court of such additional evidence and he has not offered clear and convincing
evidence of his intellectual disability to this court.
Therefore, the court finds that Perkins is not entitled to an evidentiary hearing
on his Atkins claim.
221
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous or insufficient facts, or applied law
contrary to established United States Supreme Court precedent or in a manner that
was objectively unreasonable in light of such precedent. Given these considerations,
this court cannot conclude that the Alabama Supreme Court unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
I. THE BATSON CLAIM
Perkins alleges, “The State violated the Equal Protection Clause of the
Fourteenth Amendment by excluding black prospective jurors on account of race,”
and “The state court’s holding that Perkins failed to establish a prima facie case of
race discrimination is contrary to and involves an unreasonable application of clearly
established federal law, see 28 U.S.C. § 2254(d)(1), and is based on an unreasonable
determination of the facts in light of the evidence in the record, see 28 U.S.C.
2254(d)(2).” (Doc. 1 ¶ 325 [citing Batson v. Kentucky, 476 U.S. 79 (1986)].) He
alleges that (1) the State “used its peremptory strikes disproportionately against black
veniremembers, striking 10 of the 17 black prospective jurors and only 8 of 30 white
222
prospective jurors,” (id. ¶ 326); (2) “[t]he Tuscaloosa County District Attorney’s
Office had a history of racial discrimination in its use of peremptory strikes,” (id. ¶¶
327-28 [citing Jackson v. Herring, 42 F.3d 1350, 1354-57 (11th Cir. 1995); Hemphill
v. State, 610 So. 2d 413, 414-17 (Ala. Crim. App. 1992)]), (3) “[t]he excluded black
prospective jurors shared no characteristic in common except for race,” (id. ¶¶ 33032).
At trial Perkins challenged the State’s use of 10 of its 18 peremptory challenges
to strike African-American veniremembers:
MR. SMITH: On behalf of the Defense, Your Honor, we
would move under the Batson case that we think that they’ve established
a prima facie case by the fact that the State in [its] eighteen challenges
including the [alternate] challenge struck ten black jurors, more than
fifty percent.
THE COURT: Ten of the eighteen?
MR. SMITH: Yes, sir.
THE COURT: All right. Any other basis?
MR. SMITH: I think that’s sufficient to establish a prima facie
basis. It goes back to them.
THE COURT: All right. Any other basis?
MR. [SMITH]: No, sir.
MR. LEMLEY: Judge, we would first note that this jury is now
– of these jurors remaining – there [are] seven jurors of minority race
223
who are actually on it. And I believe one of the [alternates] which is
well over fifty percent . . . . We would also note for the record that to
my knowledge, zero, that is zero, that I know of Defense strikes were of
the minority race. And the Defense struck entirely white citizens.
THE COURT: Okay. Anything further by the Defense?
MR. SMITH: No, Your Honor.
THE COURT: Okay. Let me take one quick look at that.
(Pause in the proceedings.)
THE COURT: Okay. Does the Defense disagree with the State’s
statement about the number of minority jurors?
MR. SMITH: That are still on there?
THE COURT: Right.
MR. SMITH: I believe that’s correct.
THE COURT: Okay. Well the Court will find that the Defense
fails to make a prima facie case and the Batson motion based on the fact
that the remaining venire was somewhere in the neighborhood of about
thirty[-]six percent minority. And the county makeup is somewhere in
the range of about twenty[-]six to thirty percent, somewhere in that
neighborhood.
MR. FREEMAN:
believe, Your Honor.
Approximately twenty[-]seven percent, I
THE COURT: Something like that. And we have a majority of
minority on the jury panel, so the Court denies the motion.
(Doc. 10, Vol. 11 at 1667-69.)
224
The Alabama Court of Criminal Appeals affirmed the denial of Perkins’s
Batson motion on direct appeal. It held:
. . . [T]he State’s use of 10 of its 18 peremptory strikes to remove blacks
from the venire was not sufficient, in and of itself, to establish a prima
facie case of racial discrimination. Contrary to Perkins’s contention, the
prosecutor did not use “such a large portion of his strikes against blacks
as to indicate a pattern of striking blacks from the venire.” [Ex parte]
Thomas, 659 So. 2d [3,] 8 [(1994)]. It is well established that the mere
fact that the prosecutor used one or more of his strikes to remove blacks
is not sufficient to establish a prima facie case of discrimination. In
Harrell v. State, 555 So. 2d 263, 268 (Ala. 1989), on return to remand,
571 So. 2d 1269 (Ala. Cr. App.), writ quashed, 571 So. 2d 1270 (Ala.
1990), cert. denied, 499 U.S. 984, 111 S. Ct. 1641, 113 L. Ed. 2d 736
(1991), the Alabama Supreme Court stated:
“The defendant may not prove his prima facie case solely
from the fact that the prosecutor struck one or more blacks
from his jury. United States v. Lane, 866 F.2d 103, 106
(4th Cir. 1989). The defendant must offer some evidence
in addition to the striking of blacks that would raise the
inference of discrimination. In determining whether the
evidence is sufficient to create an inference of
discrimination, the court should look to the factors listed in
[Ex parte] Branch, [526 So. 2d 609 (1987)], for guidance.”
Perkins failed to offer the trial court – and has failed to offer this
court – any evidence, other than the number of strikes used by the
prosecutor to remove blacks, that would raise an inference of
discrimination and establish a prima facie case. After thoroughly
reviewing the record in light of the factors set out in Branch, supra, we
find no evidence that the black veniremembers who were struck by the
State shared only the characteristics of race. [footnote 6] We find
nothing in the type or manner of the prosecutor’s questions during the
extensive voir dire examination that indicates any intent to discriminate
against black jurors; nor do we find a lack of meaningful voir dire
225
directed at black jurors. On the contrary, it appears that the prosecutor
thoroughly questioned both black and white jurors alike. Furthermore,
Perkins has provided no evidence that the prosecutor in this case had a
history of misusing peremptory challenges so as to discriminate against
blacks. [footnote 7] In essence, Perkins offers this court nothing, other
than the number of blacks struck, to support his contention that the State
improperly struck jurors based solely on their race. “Without more, we
do not find that the number of strikes this prosecutor used to remove
[blacks] from the venire is sufficient to establish a prima facie case of
[racial] discrimination.” Ex parte Trawick, 698 So. 2d 162, 168 (Ala.),
cert. denied, 522 U.S. 1000, 118 S. Ct. 568, 139 L. Ed. 2d 408 (1997).
Footnote 6: To the contrary, it is clear from the voir dire
examination and the jury questionnaires that many of the blacks
struck by the State shared several characteristics other than race.
For example, many of those struck either had been convicted of
a crime themselves or knew someone who had been convicted of
crime. One of those struck was strongly opposed to the death
penalty; although his answers during voir dire examination were
not enough to justify a challenge for cause (the trial court denied
the State’s challenge for cause as to this particular veniremember)
they were more than sufficient to justify a peremptory strike.
Also, one indicated during individual voir dire examination that
she had heard rumors that Perkins and Mrs. Gilliam had had a
personal, intimate relationship before Mrs. Gilliam’s abduction.
Thus, Perkins’s contention that “the only common criterion
among the ten struck African-American jurors was their race”’ is
clearly belied by the record. (Perkins’s brief to this court, p. 89.)
Footnote 7: Although Perkins does cite two federal cases in
which the court found Batson violations by a prosecutor in
Tuscaloosa County, this, alone, is not sufficient to establish a
history of discriminatory striking for the prosecutor in this case.
Because we find that Perkins failed to establish a prima facie case
of racial discrimination through the pattern of the prosecutor’s strikes,
or any of the other factors set out in Branch, supra, the trial court’s
226
reference, in response to Perkins’s purely statistical argument at trial, to
the fact that the percentage of blacks on the jury exceeded the
percentage of blacks on the venire did not violate the Supreme Court’s
holding in Thomas. Clearly, the trial court was merely responding inkind to Perkins’s purely statistical argument by also referring to
statistics, a factor that the Alabama Supreme Court specifically stated
could be considered in determining whether a prima facie case existed.
Such a reference to statistics is not an indication that Perkins had
established a prima facie case or that the trial court refused to make that
finding solely because of statistics – practice expressly disapproved of
in Thomas. Rather, this reference indicates that the trial court, faced
with an argument based solely on numbers, decided to frame its
response also in terms of numbers. Because Perkins failed to establish
a prima facie case of racial discrimination in the first place, the trial
court could not have, as Perkins contends, violated the principles in
Thomas by negating a prima facie case through the use of statistics. In
a case such as this, where the trial court cites statistics in response to a
defendant’s purely statistical Batson motion, the trial court does not
violate the principles of Thomas when the record clearly indicates that
the defendant failed to establish a prima facie case of racial
discrimination. Accordingly, we find that the trial court’s denial of
Perkins’s Batson motion was not clearly erroneous.
Perkins, 808 So. 2d at 1075-77.
In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause
of the Fourteenth Amendment prohibits a prosecutor from striking potential jurors
“solely on account of their race.” Batson, 476 U.S. at 89. In Batson, the Supreme
Court has “enumerated” three steps, “which together guide trial courts’ constitutional
review of peremptory strikes:
First, the defendant must make out a prima facie case by showing that
the totality of the relevant facts gives rise to an inference of
227
discriminatory purpose. Second, once the defendant has made out a
prima facie case, the burden shifts to the State to explain adequately the
racial exclusion by offering permissible race-neutral justifications for
the strikes. Third, if a race-neutral explanation is tendered, the trial
court must then decide whether the opponent of the strike has proved
purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168 (2005)(citing, inter alia, Batson, 476 U.S.
at 93-94)(internal quotations and citations omitted). In this case, the trial court found
that Perkins had not demonstrated a prima facie case; therefore, it did not progress
beyond the first step of Batson.
A finding of a prima facie showing pursuant to Batson is a question of fact.
See King v. Moore, 196 F.3d 1327, 1334 (11th Cir. 1999)(“Whether a defendant has
thus made a prima facie showing is (perhaps counterintuitively) treated as a question
of fact to be decided by the trial judge.”). “In deciding whether the defendant has
made the requisite showing, the trial court should consider all relevant
circumstances,” including whether the prosecutor engaged in “a ‘pattern’ of strikes
against black jurors,” and whether “[s]imilarly, the prosecutor’s questions and
statements during voir dire examination and in exercising his challenges . . . support
or refute an inference of discriminatory purpose.” Batson, 476 U.S. at 96-97. Also,
relevant circumstances include whether the subject matter of the case is racially
228
sensitive and whether the defendant is the same race as the struck jurors.38 United
States v. Hill, 643 F.3d 807, 839-40 (11th Cir. 2011). In other words, “In making out
a prima facie case, the defendant must point to more than the bare fact of the
removal of certain venirepersons and the absence of an obvious valid reason for
the removal.”
United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.
1990)(emphasis added). At trial, Perkins did not “point to” any fact supporting a
prima facie Batson showing except for the total number of strikes the State had used
to remove African-Americans from the venire.
After challenges for cause and hardship excuses, the venire was about 36%
minority. The State had, and exercised, 18 peremptory strikes; it used 10 (56%) of
them against black venire members. The final jury of 14 (12 plus 2 alternates)
included eight (57%) minority jurors (7 jurors and 1 alternate). The Eleventh Circuit
has held that such “statistics, without more, do not establish a prima facie case.”
United States v. Hill, 643 F.3d 807, 838-39 (11th Cir. 2011)(citing United States v.
Campa, 529 F.3d 980, 989 (11th Cir. 2008); Central Alabama Fair Housing Center
v. Lowder Realty Co., 236 F.3d 629, 638 (2000); United States v. Puentes, 50 F.3d
1567, 1578 (11th Cir. 1995); Allison, 908 F.2d at 1537).
38
Perkins and Mrs. Gilliam are white. Therefore, neither of these circumstances
applies to Perkins’s case.
229
In this case, a majority of the jury was African-American and the State had
additional peremptory strikes it could have used to remove them. See Allison, 908
F.2d at 1537-38 (“Allison has pointed to nothing that strongly suggests racial
motivation was the basis for the strikes used. Fifteen percent of the venire for this
case were black. The percentage of blacks on the jury (including alternates) was
twenty-one percent. The prosecutor struck three black jurors; he also struck two
white jurors. The prosecutor preserved three black jurors, even though he had enough
peremptory challenges to strike all the black jurors. Under such circumstances, we
reject Allison’s Batson claim.”) “Although the presence of African-American jurors
does not dispose of an allegation of race-based peremptory challenges, it is a
significant factor tending to prove the paucity of the claim.” Puentes, 50 F.3d at 1578
(citing Allison, 908 F.2d at 1537); see United States v. Dennis, 804 F.2d 1208, 1211
(11th Cir. 1986)(“It is thus obvious that the government did not attempt to exclude
all blacks, or as many blacks as it could, from the jury,” and “the unchallenged
presence of two blacks on the jury undercuts any inference of impermissible
discrimination that might be argued to arise from the fact that the prosecutor used
three of the four peremptory challenges he exercised to strike blacks from the panel
of potential jurors and alternates.”).
230
“Of course, the prima facie case determination is not to be based on numbers
alone but is to be made in light of the totality of the circumstances.” Hill, 643 F.3d
at 839 (citing Johnson, 545 U.S. at 168). However, Perkins did not offer the trial
court any circumstances other than the number of challenges against AfricanAmerican venire members in support of his Batson challenge. (Doc. 10, Vol. 11 at
1667.) “Because [circumstances other than numbers] were not properly before the
court, it was not an unreasonable application of Batson for the court to decline to
consider them.” Jenkins v. Allen, No. 4:08-CV-0869-VEH, 2016 WL 4540920 at *81
and n.42 (N.D. Ala. Aug. 31, 2016).
The Court of Criminal Appeals held that “Perkins [had] offer[ed] this court
nothing, other than the number of blacks struck, to support his contention that the
State improperly struck jurors based solely on their race,” and “[w]ithout more, [it
did] not find that the number of strikes this prosecutor used to remove blacks from
the venire [was] sufficient to establish a prima facie case of racial discrimination.”
Perkins, 808 So. 2d at 1076. This decision, which is based on a reasonable
determination of the facts, is neither contrary to nor an unreasonable application of
Batson and its progeny. Therefore, this claim will be denied.
231
CONCLUSION
The state court’s factual findings are supported by the record and must be given
deference by this court. Perkins has failed to demonstrate that the state court’s
rejection of this claim relied on erroneous facts, or applied law contrary to established
United States Supreme Court precedent or in a manner that was objectively
unreasonable in light of such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals unreasonably applied, or
reached a decision contrary to, clearly established federal law. Therefore, Perkins is
not entitled to habeas relief on this ground.
VII. CONCLUSION
For the foregoing reasons, the court finds that Perkins’s claims are due to be
denied and his Petition is due to be dismissed. An Order dismissing Perkins’s
Petition for Writ of Habeas Corpus, (doc. 1), will be entered contemporaneously with
this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts, the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the habeas petitioner. This Court
may issue a certificate of appealability “only if the applicant has a made a substantial
232
showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such
a showing, Perkins 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)(citation and internal quotation marks omitted). This court finds that Perkins’s
claims do not satisfy either standard.
Therefore, the district court will deny Perkins a certificate of appealability in
the Order entered contemporaneously herewith.
DONE, this 19th day of September, 2019.
SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE
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