Perkins v. State of Connecticut

Filing 22

PRISCS- RULING denying 11 Motion for Summary Judgment; granting 14 Motion to Dismiss. The Clerk is directed to enter judgment for the respondent and close this case.. Signed by Judge Dominic J. Squatrito on 9/12/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TERRY PERKINS,
Petitioner
V.

Case No.

PRISONER
3:11CV870(DJS)

STATE OF CONNECTICUT,
Respondent
RULING ON PENDING MOTIONS
The petitioner is currently confined at the Federal Prison
Camp - Canaan in Waymart, Pennsylvania.

He has filed a motion to

expunge his 1990 conviction for conspiracy to sell hallucinogenic
drugs in violation of Conn. Gen. Stat. § 21a-277(a).

The Court

has liberally construed the motion as a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 22541 ("section 2254")
challenging the 1990 state court conviction.

The petitioner has

filed a motion for summary judgment and the respondent has moved
to dismiss the petition.

For the reasons set forth below, the

motion for summary judgment is denied and the motion to dismiss
is granted.
I.

Background
In July 1989, police officers arrested the petitioner and

charged him with one count of conspiracy to sell hallucinogenic

1

"[A] district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254(a).

drugs in violation of Conn. Gen. Stat. § 21a-277.

On July 31,

1989, a judge in the Connecticut Superior Court for the Judicial
District of Fairfield at Bridgeport appointed a public defender
to represent the petitioner and the petitioner pleaded not guilty
to the narcotics charge.

On August 14, 1989, a judge revoked the

appointment of the first public defender.

On August 28, 1989, a

judge appointed a second public defender to represent the
petitioner.

On September 11, 1989, a judge granted the public

defender’s motion to withdraw as counsel for the petitioner.

It

is not apparent that the judge appointed successor counsel.

(See

Doc. No. 1 at 2-3.)
The petitioner alleges that at some point in December 1989
or January 1990, the State’s Attorney visited him in prison,
offered him an Alford plea2 and informed him that he would not
have to serve a long sentence.

On February 6, 1990, the

petitioner, who was unrepresented, entered a guilty plea under
the Alford doctrine.
made voluntarily.

The court accepted the plea as having been

In April 1990, the judge sentenced the

petitioner to a seven year term of imprisonment, execution
2

A defendant entering a guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970) “voluntarily, knowingly,
and understandingly consent[s] to the imposition of a prison
sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.” Id. at 37.
Thus, the Alford doctrine permits the trial court to accept a
guilty plea from a defendant who maintains his innocence where
the court finds that there is a strong factual basis to support
the crime charged. See id. at 38.
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suspended after three years, and followed by three years of
supervised release.
conviction.

The petitioner did not appeal the

(See id. at 3-4)

In November 1997, federal law enforcement officers arrested
petitioner in Bridgeport, Connecticut on drug charges.
v. Perkins, Case No. 3:97cr221(EBB).

See U.S.

In March 1998, the

petitioner pleaded guilty to one count of possession with intent
to distribute and distribution of cocaine base in violation of 21
U.S.C. § 841(a)(1).
On March 23, 1998, the United States Attorney’s Office filed
an information charging the petitioner with possession of a
firearm by a convicted felon.
3:98cr45(EBB).

See U.S. v. Perkins, Case No.

On March 23, 1998, the petitioner pleaded guilty

to one count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1).
On March 14, 2000, Judge Burns presided over sentencing
proceedings in both criminal matters.

In U.S. v. Perkins, Case

No. 3:97cr221(EBB), Judge Burns sentenced the petitioner to a
term of 240 months of imprisonment, followed by three years of
supervised release on the charge of possession with intent to
distribute and distribution of cocaine base in violation of 21
U.S.C. § 841(a)(1).

In U.S. v. Perkins, Case No. 3:98cr45(EBB),

Judge Burns sentenced the petitioner to a term of 120 months of
imprisonment to be followed by three years of supervised release
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on the charge of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1).

Both sentences were to be

served concurrently to each other.
On March 20, 2000, the petitioner appealed the narcotics
conviction and sentence entered in U.S. v. Perkins, Case No.
3:97cr221(EBB).

In October 2000, the Second Circuit Court of

Appeals issued a Mandate affirming the judgment of conviction.
(See id., Doc. No. 44.)
On July 9, 2001, the petitioner filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 22553 ("section 2255"), which
was denied by the Court on its merits on September 6, 2002. (See
id., Doc. Nos. 46, 52).

That motion did not raise the claim that

the petitioner's federal sentence was unconstitutionally enhanced
because it was based on a state court conviction that was
obtained in violation of his right to counsel. The petitioner
filed a second section 2255 motion in 2006. That motion, which
also did not raise the claim that the petitioner's state court
conviction was obtained in violation of his right to counsel, was
transferred to the Second Circuit pursuant to section 2255(h)4.

3

"A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255(a).
4

"A second or successive motion must be certified as
provided in 28 U.S.C. § 2244 by a panel of the appropriate court
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On September 25, 2006, the Second Circuit denied the application
to file a second section 2255 motion, since it did not satisfy
the criteria for a second or successive motion specified in 28
U.S.C. § 2255. See U.S. v. Perkins, Case No. 3:06cv80(EBB)(Doc.
Nos. 1, 4).
On October 22, 2007, the petitioner filed a third motion
pursuant to section 2255. In that motion, the petitioner argued
that his state court conviction, which served as the basis of the
enhancement of his federal sentence, was unconstitutional because
he did not have an attorney at the time of his plea and
sentencing. On December 11, 2007, the Second Circuit denied the
petitioner's application for an order authorizing the district
court to consider a successive section 2255 motion because the
petitioner had not satisfied the criteria set forth in 28 U.S.C.
§ 2255.

See Perkins v. U.S., Case No. 3:07cv1554 (EBB) (Doc. No.

6).
In January 2007, the petitioner filed a petition for writ of
habeas corpus in state court challenging his 1990 conviction for
conspiracy to sell hallucinogenic drugs.

See Perkins v. Warden,

State Prison, Docket No. CV07-4001528-S (Conn. Super. Ct. Jan.

of appeals to contain - - (1)newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable." 28 U.S.C. § 2255(h).
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19, 2007).

On February 8, 2007, a Connecticut Superior Court

judge declined the petition pursuant to Connecticut Practice
Section 23-245.

The petitioner did not appeal the order of the

court declining the habeas petition.
In April 2007, the petitioner filed a petition for writ of
error coram nobis in the Connecticut Supreme Court challenging
his 1990 Alford plea to one count of conspiracy to sell
hallucinogenic drugs on the ground that it was made without the
assistance of counsel and his waiver of counsel was not knowing,
intelligent or voluntary.

The petitioner noted that the 1990

conviction had been used to enhance his federal sentence. The
petition was subsequently transferred to the Connecticut
Appellate Court. On July 25, 2007, the Connecticut Appellate
Court granted the respondent’s motion to dismiss the petition for
writ of error coram nobis.

On September 26, 2007, the

Connecticut Supreme Court denied a petition for certification to
appeal from the decision of the Connecticut Appellate Court. See
State v. Perkins, 284 Conn. 921 (2007).
The petitioner claims that his 1990 state court conviction
and sentence are unconstitutional because he was unrepresented at

5

"The judicial authority shall promptly review any petition
for a writ of habeas corpus to determine whether the writ should
issue. The judicial authority shall issue the writ unless it
appears that: (1) the court lacks jurisdiction; (2) the petition
is wholly frivolous on its face; or (3) the relief sought is not
available." Conn. P.B. Sec. 23-24(a).
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the time he entered the Alford plea and did not waive his Sixth
Amendment right to counsel.

The petitioner asserts that the

Connecticut Superior Court lacked jurisdiction to convict him
because the judge did not appoint an attorney to represent him at
the plea hearing.
II.

Discussion
The petitioner has moved for summary judgment on the ground

that the respondent failed to timely respond to the petition for
writ of habeas corpus.

The respondent has moved to dismiss the

petition on the grounds that the petitioner is no longer in
custody pursuant to the 1990 state court conviction and that the
petition is untimely.
A.

Motion for Summary Judgment (Doc. No. 11)

The petitioner asserts that the respondent was to have filed
a response to the habeas petition on or before August 31, 2011.
The respondent sought an extension of time, nunc pro tunc, to
October 17, 2011, to respond to the petition.
the motion on September 28, 2011.

The court granted

The respondent sought a second

extension of time, nunc pro tunc, to December 7, 2011, to respond
to the petition.
2012.

The court granted the motion on February 15,

The respondent filed its motion to dismiss the petition on

December 7, 2011.

Thus, the respondent is not in default.6

6

Even if the respondent had not moved for extensions of
time nunc pro tunc, the Second Circuit has expressed its
preference that cases be decided on the merits. See, e.g., Enron
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The petitioner argues that he is entitled to summary
judgment because the respondent did not timely respond to the
habeas petition.

Because the court granted the respondent’s

motions seeking extensions of time, nunc pro tunc, to respond to
the habeas petition, the respondent is not in default.

The

motion for summary judgment is denied.
B.

Motion to Dismiss (Doc. No. 14)

The respondent argues that the petition should be dismissed
because the petitioner is no longer in custody as to the state
conviction and sentence he seeks to challenge.

The respondent

also argues that the petition is barred by the statute of
limitations set forth in 28 U.S.C. § 2244(d)(1).
A federal court may not entertain a habeas petition
challenging a state conviction unless the petitioner is “in
custody in violation of the Constitution or laws or treaties of
the United States.”

28 U.S.C. § 2254(a).

It is the petitioner’s

burden to demonstrate that he or she is in custody pursuant to a
state court judgment.

See Lackawanna County District Attorney v.

Cross, 532 U.S. 394, 401 (2001).

The Supreme Court has

interpreted this language to require that the “petitioner be ‘in
custody’ under the conviction or sentence under attack at the

Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). District
courts should use default to dispose of cases in very limited
situations. See Jackson v. City of New York, 22 F.3d 71, 75 (2d
Cir. 1994).
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time his petition is filed,” Maleng v. Cook, 490 U.S. 488, 490-91
(1989), or under a consecutive sentence imposed at the same time
as the conviction or sentence under attack.

See Garlotte v.

Fordice, 515 U.S. 39, 41 (1995).
The petitioner asserts that he is challenging his 1990
Connecticut conviction for conspiracy to sell hallucinogenic
drugs.

The petitioner received a sentence of seven years,

execution suspended after three years, and followed by three
years of supervised release.

Petitioner concedes that he has

already served his 1990 sentence.

Thus, the petitioner is no

longer in custody pursuant to that sentence and the court lacks
jurisdiction to entertain this action under section 2254. See
Maleng, 490 U.S. at 490 ("The federal habeas statute gives the
United States district courts jurisdiction to entertain petitions
for habeas relief only from persons who are in custody . . .
under the conviction or sentence under attack. . . .").
In a prior federal action filed pursuant to 28 U.S.C. §
22417 ("section 2241"), the petitioner acknowledged that "he
cannot challenge [his 1990] state court conviction under § 2254,
since he is no longer in custody for that violation." Perkins v.
Holt, 410 F. App'x 422, 423 (3d Cir. 2010). In that action, the
Third Circuit noted that "[a] federal prisoner challenging his

7

"Writs of habeas corpus may be granted by the . . .
district courts . . . ." 28 U.S.C. § 2241(a).
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conviction can seek relief under section 2241 only if the remedy
provided by section 2255 [which is the presumptive means for a
federal prisoner to challenge the validity of his conviction or
sentence] is inadequate or ineffective to test the legality of
his detention." Id. That Court concluded that "Perkins' situation
is not the rare one rendering section 2255 inadequate or
ineffective . . . [and that] Perkins raises arguments concerning
his sentence [i.e., that his federal sentence was
unconstitutionally enhanced on the basis of an uncounseled state
court conviction] that could have been raised at his federal
sentencing proceeding, on direct appeal, or in his § 2255 motion.
That Perkins has already unsuccessfully pursued a section 2255
motion in the sentencing court and now faces a statutory bar to
filing another one does not show the inadequacy of that remedy."
Id. Thus the petitioner is foreclosed from challenging his 1990
state conviction under section 2241 as well as under section
2254.
In a footnote on page five of his petition, as well as in
his response to the motion to dismiss, the petitioner contends
that he can still challenge the allegedly unconstitutional 1990
state conviction because it was used to enhance his current
federal drug conviction and sentence.
Doc. No. 19.)

(See Doc. No. 1 at 5 and

The petitioner suggests that the court should

construe the present petition as a challenge to his current

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federal narcotics conviction as enhanced by the 1990 state court
conviction.
As previously noted, section 2255 "is generally the proper
vehicle for a federal prisoner's challenge to his conviction and
sentence . . . ." Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir.
2001). In certain instances, a court may construe a postconviction motion brought under another rule or motion as a
motion brought under section 2255. See id. at 148; Adams v.
United States, 155 F.3d 582, 584 (2d Cir. 1998). "But where, as
in this case, the . . . option [of construing a motion as a
section 2255 motion and transferring it to the Court of Appeals
for a determination whether to allow a successive motion] is not
available because [the Court of Appeals] has already denied
petitioner leave to file a successive § 2255 motion based on the
same claims now raised in a § 2241 [or § 2254] petition, then,
upon concluding that it is without jurisdiction to hear the
claims pursuant to § 2241 [or § 2254], the district court should
simply dismiss the petition." Cephas v. Nash, 328 F.3d 98, 104 n.
5 (2d Cir. 2003).
As indicated above, the petitioner was charged in two
separate cases with violations of federal criminal law.

The

docket sheet of petitioner’s federal criminal conviction for
possession with intent to distribute and distribution of cocaine
base reflects that petitioner filed a prior section 2255 motion

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to vacate or set aside his conviction and sentence in July 2001.
See U.S. v. Perkins, Case No. 3:97cr221 (EBB) (Doc. No. 46.)

On

September 6, 2002, the Court denied the motion on the merits.
See id. (Doc. No. 52.)

On June 23, 2003, the Second Circuit

dismissed the appeal of the Court’s ruling and affirmed the
conviction and sentence.

See id. (Doc. No. 66.) A second section

2255 motion was not authorized by the Second Circuit because the
petitioner had not satisfied the criteria specified in 28 U.S.C.
§ 2255 for certification of a second or successive section 2255
motion. See U.S. v. Perkins, Case No. 3:06cv80(EBB)(Doc. No. 4.)
In a third section 2255 motion, filed on October 22, 2007,
the petitioner raised the same claims as are asserted in the
present petition. See Perkins v. U.S., Case No. 3:07cv1554 (EBB)
(Doc. No. 1.) On December 11, 2007, the Second Circuit denied the
petitioner's application for an order authorizing the district
court to consider the third section 2255 motion because the
petitioner had not satisfied the criteria set forth in 28 U.S.C.
§ 2255. See id. (Doc. No. 6.)
Because the Second Circuit "has already denied petitioner
leave to file a successive § 2255 motion based on the same claims
now raised in a § 2241 [or § 2254] petition," and because this
Court has "conclud[ed] that it is without jurisdiction to hear
the claims pursuant to § 2241 [or § 2254]," this Court "should
simply dismiss the petition." Cephas, 328 F.3d at 104 n.5.
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In addition, to the extent that the petitioner is also
challenging his federal conviction for possession of a firearm by
a felon, the Court notes that a section 2255 motion addressed to
the gun possession conviction is currently pending in this Court.
See Perkins v. United States, Case No. 3:12cv956(EBB).
Accordingly, the motion to dismiss the petition on the
ground that the petitioner is no longer in custody pursuant to
the 1990 state court conviction is granted8.

The court will not

construe the present petition as a section 2255 motion
challenging petitioner’s convictions for possession with intent
to distribute and distribution of cocaine base and for possession
of a firearm by a convicted felon as enhanced by the petitioner’s
allegedly illegal 1990 state court conviction.
Conclusion
The Motion for Summary Judgment (Doc. No. 11) is DENIED.
The Motion to Dismiss (Doc. No. 14) is GRANTED.

Because the

petitioner has failed to make a substantial showing of a denial
of a constitutional right, a certificate of appealability will
not issue.

See 28 U.S.C. § 2253(c)(2); Finkelstein v. Spitzer,

455 F.3d 131, 133 (2d Cir. 2006) (denying a certificate of
appealability because petitioner was no longer in custody in
8

Since the Court finds it lacks jurisdiction over the
petitioner's section 2254 motion because he was not "in custody"
pursuant to the 1990 state conviction at the time he filed his
motion, the Court does not find it necessary to address the
respondent's argument that the motion was untimely.
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connection with his challenged convictions at the time he filed
his habeas corpus petition).

The Clerk is directed to enter

judgment for the respondent and close this case.

SO ORDERED this 12th day of September 2012, at Hartford,
Connecticut.

_____/s/ DJS_________________________
Dominic J. Squatrito
United States District Judge

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