Perkins v. Phelps et al

Filing 26

MEMORANDUM OPINION - Signed by Judge Gregory M. Sleet on 5/14/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LEON K. PERKINS,
Petitioner,

v.
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELA WARE,
Respondents.

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Civil Action No. 09-162-GMS

Leon Perkins. Pro se petitioner.
Paul R. Wallace, Chief of Appeals, Delaware Department of Justice, Wilmington, Delaware.
Counsel for respondents.

MEMORANDUM OPINION

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2012

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Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner Leon K. Perkins ("Perkins"). (D.I. 1) For the reasons discussed, the
court will deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUNDl
On December 15, 2002, Wilmington police officers responded to a complaint that shots
had been fired in or about Perkins' apartment. After arriving there, the officers discovered the
dead body of a female victim lying at the bottom of the fire escape. Police identified the victim
as Aunyea Hawkins ("'Hawkins"), the mother of Perkins' daughter. Hawkins was found topless,
wearing only a pair of medical scrubs. Nearby residents reported that they heard arguing,
screaming, a "lot of heavy movement, footsteps ... enough to make ... the ceiling vibrate," and
the sound of a single gunshot. Hawkins suffered a gunshot wound that traveled in a downward
trajectory, entering the back of her head and exiting through the left side of her face.
Officers recovered a print of Perkins' thumb from a box of .38-caliber ammunition on the
floor of his apartment. Perkins was later arrested and charged with Hawkins' murder.
According to Perkins, the gun was thrown off a bridge into the Delaware River and never
recovered.
At trial, Perkins testified as follows: Hawkins had come to Perkins' apartment to pick up
their daughter. There they engaged in sexual intercourse, after which Hawkins became sick and
vomited on the living room floor. After Hawkins and Perkins took a shower together, Perkins

IThe factual background is recited from the Delaware Supreme Court decision on
Perkin's direct appeal, Perkins v. State, 920 A.2d 391 (Del. 2007).

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started getting dressed to meet another woman. Hawkins scrolled through the caller ID log on
Perkins' telephone. She became enraged when she saw the telephone numbers of several
women, and began screaming at Perkins. When Perkins entered from another room, Hawkins
was pointing a gun at him. They struggled for control of the gun. Perkins eventually grabbed the
gun from Hawkins, who began running down the fire escape. Perkins stopped to turn back
toward the apartment, and his hands went out to grab the railing, which caused the gun
accidentally fire into the back of Hawkins' head. Panicked, Perkins then fled the apartment and
later threw the gun into the Delaware River. Perkins, 920 A.2d at 393-94.
A Superior Court jury convicted Perkins of first degree murder, possession of a firearm
during the commission of a felony ("PFDCF"), and two counts of possession of a deadly weapon
or ammunition by a person prohibited ("PDWPP"). On February 10, 2006, the Superior Court
sentenced Perkins to life imprisonment for the first degree murder conviction, and to a term of
years on the remaining charges. Perkins appealed, and the Delaware Supreme Court affirmed his
convictions and sentences. ld.
In May 2007, Perkins filed a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the Rule 61
motion, and the Delaware Supreme Court affirmed that decision. See State v. Perkins, 2008 WL
2406231 (Del Super. Ct. June 11, 2008); Perkins v. State, 962 A.2d 917 (Table), 2008 WL
5191831 (Del. Dec. 11,2008).

II. GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")

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I

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"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202,206 (2003).
Pursuant to AEDP A, a federal court may consider a habeas petition filed by a state prisoner 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). AEDPA imposes procedural requirements and standards
for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v.

Cone, 535 U.S. 685, 693 (2002); see Woodford, 538 U.S. at 206.
B. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b);

O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). AEDP A states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that­
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights ofthe
applicant.
28 U.S.C. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to
give "state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at

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844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state's highest court, either on direct appeal or in a post-conviction proceeding. See Lambert v.

Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Coverdale v. Snyder, 2000 WL 1897290, at *2 (D.
Del. Dec. 22, 2000). "Fair presentation of a claim means that the petitioner must present a
federal claim's factual and legal substance to the state courts in a manner that puts them on notice
that a federal claim is being asserted." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004).

C. Standard of Review
When a state court has adjudicated a petitioner's habeas claim on the merits, a federal
district court can only grant habeas relief if the state court's 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.
28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362,412 (2000); Appel v. Horn, 250
F.3d 203,210 (3d Cir. 2001). A claim has been "adjudicated on the merits" for the purposes of
28 U.S.C. § 22S4(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. Thomas v. Horn, 570 F .3d 105, 115
(3d Cir. 2009). The deferential standard of § 2254(d) applies even "when a state court's order is
unaccompanied by an opinion explaining the reasons relief has been denied"; as recently
explained by the Supreme Court, "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."

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Harrington v. Richter, _ U.S. _, 131 S.Ct. 770,784-85 (2011).
And finally, when reviewing a claim under § 2254(d), a federal court must presume that
the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1); Appel, 250
F .3d at 210. This presumption of correctness applies to both implicit and explicit findings of
fact, and can only be rebutted by the petitioner upon a showing of clear and convincing evidence
to the contrary. 28 U.S.C. § 2254(e)(I); Miller-EI v. Cockrell, 537 U.S. 322, 341 (2003)(stating
that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the
unreasonable application standard of § 2254(d)(2) applies to factual decisions); Campbell v.

Vaughn, 209 F.3d 280,286 (3d Cir. 2000).

III. DISCUSSION
Perkins' petition asserts the following six grounds for relief: (1) defense counsel provided
ineffective assistance by failing to request missing evidence instructions under Deberry v. State,
457 A.2d 144 (Del. 1983) for evidence the State failed to preserve; (2) the State violated Perkins'
due process rights by destroying and suppressing eXCUlpatory evidence; (3) trial counsel erred by
failing to object to prosecutorial misconduct during the closing argument; (4) trial counsel
provided ineffective assistance by failing to move to sever the two charges of possession of a
deadly weapon by a person prohibited; (5) trial counsel provided ineffective assistance by failing
to request lesser-included offense instructions for second degree murder, manslaughter, and
criminally negligent homicide; and (6) trial counsel provided ineffective assistance by failing to
request a specific unanimity instruction. The State contends that the petition should be denied in
its entirety because the claims are procedurally barred. Alternatively, the State contends that the
ineffective assistance of counsel claims lack merit.

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A. Claims One, Three, Four, Five, and Six: Ineffective Assistance of Counsel
Perkins presented the instant five ineffective assistance of counsel claims in his Rule 61
motion. The Superior Court judge directed trial counsel to respond to Perkins' ineffective
assistance claims, and counsel did so in a twenty-three page affidavit. After considering the
affidavit, the Superior Court denied the claims as meritless.
On post-conviction appeal, Perkins explicitly argued that the Superior Court abused its
discretion in denying his ineffective assistance of counsel claims without holding an evidentiary
hearing, while specifically describing the ineffective assistance of counsel claims. The Delaware
Supreme Court denied Perkins' evidentiary hearing claim because it was unable to conclude that
the judge abused her discretion in determining that an evidentiary hearing was not necessary.

See Perkins, 2008 WL 5372770, at *1. The Delaware Supreme Court also explicitly held that the
ineffective assistance of counsel claims were "without merit for the reasons stated in the Superior
Court's well-reasoned decision of June 11,2008." Id. at *2. Given the Delaware Supreme
Court's adjudication of these claims, the court must review Perkins' ineffective assistance of
counsel claims under § 2254(d).2
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first

Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an
objective standard of reasonableness," with reasonableness being judged under professional

2Due to this conclusion, the court will not address the State's contention that Perkins
procedurally defaulted his ineffective assistance of counsel claims.
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norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that, but
for counsel's error the result would have been different." Id. at 687-96. A reasonable probability
is a "probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See

Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885,891­
92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding
and leads to a "strong presumption that the representation was professionally reasonable."

Strickland, 466 U.S. at 689.
Notably, a state court's decision regarding an ineffective assistance of counsel claim is
owed "double deference" when reviewed under § 2254(d)(1), because
[t]he standards created by Strickland and § 2254(d) are both "highly deferential," and
when the two apply in tandem, review is doubly so. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 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 qnestion is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard."

Richter, 131 S.Ct. at 788 (emphasis added)(internal citations omitted). When assessing the
reasonableness of counsel's performance under Strickland, there "is a strong presumption that
counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than
sheer neglect," and "Strickland [] calls for an inquiry into the objective reasonableness of
counsel's performance, not counsel's subjective state of mind." Richter, 131 S.Ct. at 790
(internal citation omitted). In turn, "[w]hen assessing prejudice under Strickland, the question is

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"whether it is reasonably likely the result would have been different" but for counsel's
performance, and the "likelihood of a different result must be substantial, not just conceivable."

ld. And finally, when viewing a state court's determination that a Strickland claim lacks merit
through the lens of § 2254(d), federal habeas relief is precluded "so long as fairminded jurists
could disagree on the correctness of the state court's decision." ld. at 786. In other words,
[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.
[d.

Turning to the § 2254(d) inquiry in this case, the court notes that the Delaware Supreme
Court analyzed Perkins ineffectiveness assistance of counsel claims within the Strickland
framework. Therefore, the Delaware Supreme Court's decision is not contrary to clearly
established law. See Williams, 529 U.S. at 406 ("[A] run-of-the mill state-court decision
applying the correct legal rule from [Supreme CourtJcases to the facts of a prisoner's case [does]
not fit comfortably within § 2254(d)(1)'s 'contrary to' clause.").
Additionally, for the following reasons, the court concludes that the Delaware Supreme
Court reasonably applied Strickland in denying Perkins' ineffective assistance of counsel
allegations.
1. Failure to request missing evidence instructions
Pursuant to well-settled Delaware precedent, the State has a duty to gather and preserve
evidence that may be material to a defendant's guilt or innocence.3 See Lolly v. State, 611 A.2d

3In contrast, although the United States Supreme Court has held that due process requires
the preservation of potentially exculpatory evidence, Arizona v. Youngblood, 488 U.S. 51

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956,960 (Del. 1992). When faced with the State's failure to do so, a trial court may be required
to give a missing evidence instruction, commonly referred to as a Deberry instruction, telling the
jury to infer that the evidence would have been exculpatory if it had been gathered and/or
preserved. 4 See Deberry, 457 A.2d at 751-52.
In this case, Perkins contends that trial counsel erred by failing to request a Deberry
instruction with respect to the following evidence the State failed to gather and preserve: the
bullet allegedly shot by Hawkins and lodged in the ceiling of Perkins apartment; the gun; a
comparison between Hawkins' fingerprints and the latent found on the ammunition box; a
comparison between Hawkins' fingerprints and those found at the crime scene; gunshot residue

(1988), there is no Supreme Court precedent requiring law enforcement personnel to gather
potentially exculpatory evidence on the accused's behalf.
4In Deberry, the Delaware Supreme Court established a bifurcated analysis for
determining the appropriate response to the State's failure to preserve and/or collect the missing
evidence in a particular case. The first part of the Deberry analysis involves asking the following
three questions:
(1) if the requested material was in the possession of the State at the time ofthe defense
request, would it have been subject to disclosure under Criminal Rule 16 or Brady v.
Maryland;
(2) if so, did the State have a duty to preserve the material; and
(3) if there was a duty to preserve the material, was the duty breached, and what
consequences should flow from a breach.
If it is determined that the State breached its duty to collect and preserve evidence, then
the court should proceed to the second part of the analysis to determine the proper remedy. This
portion requires considering:
(1) the degree of negligence or bad faith involved;
(2) the importance ofthe missing evidence considering the probative value and reliability
of secondary or substitute evidence that remains available; and
(3) the sufficiency of the other evidence produced at trial to sustain the conviction.
Deberry, 457 A.2d at 750-752. The court must "draw a balance between the nature of the
State's conduct and the degree of prejudice to the accused" to determine if the appropriate
sanction is a Deberry instruction. Id. at 752.
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testing of Perkins'

clothing~

and gunpowder residue testing of Hawkins' hands and fingernails.

a. Bullet
The two theories presented by the defense during the trial were that Perkins acted in self­
defense and that he accidentally shot and killed Hawkins. Perkins testified that the gun belonged
to Hawkins and that she fired the gun at him in anger, but missed him and hit the ceiling instead.
Perkins also testified that he struggled with Hawkins while trying to get the gun away from her,
and that he accidentally shot her after the struggle. In an attempt to substantiate the theory that
Hawkins fired first, defense counsel introduced photos of the ceiling showing a bullet hole (taken
by Perkins' brother Kevin), the results of gunshot residue testing on Hawkins' hands and
fingernails, and the fact that two bullets were missing from the ammunition box. The bullet
Hawkins allegedly shot was never recovered from the ceiling.
In his Rule 61 proceeding, Perkins alleged that his defense attorneys were ineffective for
failing to request a missing evidence instruction for the bullet, because the bullet would have
bolstered his claim of self-defense. Defense counsel filed a Rule 61 affidavit in response,
explaining why they decided not to request the instruction. Counsel described how they initially
sent a defense investigator to search the apartment to retrieve the bullet, but reconsidered that
course of action when the apartment management refused to let the investigator into the
apartment. (DJ. 15, App. to Appellant's Op. Br. in Perkins v. State, No.325,2008, Exh. B)
Counsel explained that obtaining a court order for permission to enter the apartment would have
put the State on notice of a critical element of their proposed defense theory, because the State
would have requested to be present during any search of the apartment. This scenario created the
following "Catch-22 []: if a bullet were found, [Perkins'] defense would be bolstered, [but] if a

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bullet were not found, the State would use this fact to seriously undermine the entire defense at
trial." Perkins, 2008 WL 24606231, at *3. Therefore, for tactical reasons, counsel decided not
to seek a court order to enter the premises.
After reviewing the record, the Superior Court held that defense counsel did not render
ineffective assistance by not requesting a missing evidence instruction for the bullet for two
reasons. First, a Deberry instruction was not warranted in Perkins' circumstances, because the
State did not have a duty to "gather" the bullet; the bullet was not discoverable under Rule 16 or

Brady because it was never in the State's possession and counsel did not request the State to
locate and gather the bullet. Second, given the detrimental effect not finding a bullet in the
ceiling would have had on the defense theory, counsel reasonably and strategically decided to
rely on more dependable evidence of the bullet's existence and forego a court order for
permission to enter the apartment. The Delaware Supreme Court affirmed this decision,
explicitly holding that counsels' actions did not satisfy either prong of Strickland.
In this proceeding, the court begins by noting it is bound by the Delaware state courts'
holding that Perkins was not entitled to a missing evidence instruction under Delaware law. See

Bradshaw v. Richter, 546 U.S. 74, 76 (2005). Therefore, the court concludes that counsel did not
perform deficiently by failing to request an instruction that was not available in his case, and
Perkins was not prejudiced by counsels' failure to request an unavailable instruction. See United

States v. Sanders, 165 F.3d 248,253 (3d Cir. 1999).
Additionally, counsels' decision to rely on the other evidence indicating the existence of
the bullet in the ceiling, rather than seek a court order for permission to enter the apartment to
recover the bullet themselves, did not amount to ineffective assistance of counsel. Although

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Perkins contends that Kevin's photos of the ceiling clearly demonstrated the existence of a bullet
hole, the record belies that contention. For instance, as noted by the Superior Court, "(t]he
record of the preliminary hearing reflects that the State examined the walls and ceiling in
Perkins' apartment and no damage was found to indicate that a gunshot had been fired in the
apartment." Perkins, 2008 WL 2406231, at *3 n.20. In turn, "the testimony of several neighbors
stating that they heard only one gunshot corroborate[d] the State's finding." Id And,
significantly, although Kevin testified that he did not shoot a bullet into the ceiling, he conceded
that he had the opportunity to do so. Thus, when viewed in context with this record, the
Delaware Supreme Court's holding that counsel reasonably decided to rely on the other more
dependable evidence regarding the bullet's existence cannot be said to be "so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement." Accordingly, the court will deny the instant
allegation for failing to satisfy the doubly deferential standard by which ineffective assistance of
counsel claims are measured.
b. Missing Gun
Perkins also alleges that counsel rendered ineffective assistance by not requesting a
missing evidence instruction regarding the State's inability to produce the gun. According to
Perkins, the serial numbers on the gun would have demonstrated that the gun was registered to a
friend of Hawkins, thereby substantiating his claim that Hawkins brought the gun to his
apartment and that he acted in self-defense.
The Superior Court denied this argument, holding that counsel reasonably decided not to
request a missing evidence instruction because Perkins intentionally disposed of the gun and he

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never informed counsel about the serial numbers. The Delaware Supreme Court affirmed the
Superior Court's judgment.
This decision constituted a reasonable application of Strickland. Pursuant to Delaware
law, a Deberry instruction is not appropriate if the State did not playa role in the destruction of
potentially exculpatory evidence. See State v. Burns, 2007 WL 2677064, at *7 (Del. Super. Ct.
Sept. 11, 2007). In this case, Perkins destroyed the evidence by throwing the gun over the bridge,
and the police were not even aware of the gun's existence at that time. See, e.g., McCrey v.
State, 941 A.2d 1019 (Table), 2008 WL 187947, at *2 (Del. Jan. 3,2008); Burns, 2007 WL
2677064, at *7. Therefore, defense counsel did not render ineffective assistance by failing to
request an unavailable instruction.
c. Hawkins' Fingerprints at Crime Scene and on Ammunition Box
Perkins contends that counsel erred by not requesting a missing evidence instruction with
respect to the State's failure to compare Hawkins' fingerprints to unidentified fingerprints found
at the crime scene. However, considering that Hawkins' presence in Perkins' apartment was
never in dispute, comparing Hawkins' fingerprints against those found at the crime scene would
have been irrelevant. Therefore, counsels' failure to request a Deberry instruction for this
evidence did not amount to ineffective assistance.
Perkins also contends that defense counsel should have requested a Deberry instruction
regarding the State's failure to compare the print of Perkins' thumb that was recovered from the
box of ammunition to unknown prints lifted from the ammunition box, because such a
comparison would have demonstrated that the unknown prints belonged to Hawkins. The
Superior Court rejected this argument after determining that Perkins could not establish how

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finding Hawkins' fingerprints on the box would have exonerated him of the possession of a
deadly weapon or ammunition by a person prohibited charges when the box of ammunition was
found on the floor of his apartment. The Superior Court also concluded that Perkins failed to
demonstrate that he was prejudiced by counsels' performance because, during closing argument,
counsel used the State's failure to compare the print of Perkins' thumb that was recovered from
the box of ammunition to unknown prints lifted from the ammunition box to demonstrate how
poorly and incompletely the police investigated Hawkins' homicide and the possibility of other
suspects. The Delaware Supreme Court affirmed this decision.
In their Rule 61 affidavit, counsel explained that a Deberry instruction for this evidence
was not warranted, because the evidence was not "missing," and the State is not required to
perform any specific type of forensic testing to prove its case. Moreover, although defense
counsel could have independently ordered a fingerprint analysis of the ammunition box, they
deliberately chose not to do so because of the "Catch-22" facing them; if the victim's prints were
not found on the box, the State would have used that fact to seriously undermine Perkins' theory
of self-defense at trial. (D.I. 15, App. to Appellant's Op. Br. in Perkins v. State, No. 325,2008,
Exh. B, at 8-9)
In this proceeding, Perkins has failed to provide anything more than mere speculation as
to the potential value such fingerprint testing would have had on his case. Thus, when viewed in
context with counsels' Catch-22 explanation, and through the doubly deferential lens applicable
to ineffective assistance of counsel claims on habeas review, the court concludes that the
Delaware Supreme Court's denial of the instant allegations does not warrant habeas relief.

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d. Clothing and fingernail clippings
Perkins contends that his defense attorneys were ineffective for not requesting a missing
evidence instruction regarding the police department's failure to collect Hawkins' fingernail
clippings to test for gunshot residue. Perkins' counsel, however, had Hawkins' fingernails tested
and introduced the positive results at trial via expert testimony. Therefore, defense counsel did
not provide ineffective assistance in this respect because no missing evidence instruction was
necessary.
Perkins also contends that counsel were ineffective for not requesting a missing evidence
instruction regarding the police department's failure to preserve the clothing he was wearing at
the time of his arrest. He asserts that "the front of the missing short he wore would have tested
positive for gun powder residue supporting his story of the deceased possessing and firing the
gun at him inside the apartment. No doubt this evidence [would] logically explain why the
deceased's fingernail clippings ... tested positive for gun powder residue by [Perkins'] expert."
(D.I. 2 at 9Y The Superior Court rejected this claim as unsubstantiated for two reasons: (1)
defense counsel had some of Hawkins' clothing tested for gunpowder residue and the results
were negative, thereby undermining Perkins' claim that Hawkins shot at him first; and (2)
Perkins failed to explain how the alleged the absence of close range blood stains corroborated his
claim of self-defense.
In this proceeding, Perkins does nothing more than assert an unsupported argument that
finding gun shot residue on his shorts would have had provided positive evidence helpful in

5The page number referred to for docket entries is the page number generated by CM­
ECF, not the page number on the original document.
15

substantiating his allegations of self-defense. Perkins' mere speculation about a possible positive
forensics test does not, however, establish a reasonable probability that the jury's verdict would
have been different but for the absence of a missing evidence instruction. Therefore, the court
concludes that the Delaware Supreme Court reasonably applied Strickland in denying this
argument.
2. Failure to Object to Prosecutor Statements in Closing Argument
Perkins next contends that counsel should have objected to the following prosecutorial
misconduct during the State's closing argument: improper vouching for the credibility of the
police witnesses and their failure to preserve certain evidence; unfair attacks on the defense
evidence; and intentional misleading of the jury about Perkins' prior firearm conviction. As
demonstrated below, this contention is unavailing, because the prosecutor's actions did not
amount to misconduct.
a. Vouching and Attacking Quality of Evidence
In order for a prosecutorial misconduct claim to warrant federal habeas relief, the
prosecutor's comments must have "so infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 180 (1986)(citing
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). When determining whether a prosecutor's
comments are improper, the comments must be viewed in the context in which they were made.
United States v. Young, 470 U.S. 1, 11 (1985).
During Perkins' trial, defense counsel presented photographs depicting a bullet hole in the
ceiling of Perkins' apartment. Testifying for the defense, Perkins' brother Kevin stated that he
took the pictures and that he did not shoot the hole depicted in the photographs. However, when

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cross-examined by the State, Kevin conceded that he had the opportunity to shoot the hole in the
ceiling. During the State's closing argument, the prosecutor said,
Two brothers, two younger brothers trying to help Leon Perkins in a clumsy, inartful way.
Look at the photos. They're not evidence in this case of any weight of any import.
They're junk or they're worse.
The prosecutor also contended that Kevin was responsible for shooting the hole in the ceiling.
In his Rule 61 motion, Perkins argued that counsel provided ineffective assistance by
failing to object to those prosecutorial statements as improper comments on the significance of
the photographic evidence and the credibility of Perkins' brother Kevin. The Delaware Supreme
Court rejected the ineffective assistance of counsel claim because the prosecutor's statements
were legitimate and reasonable inferences based on the evidence presented at trial.
It is well-settled that, during closing summation, a prosecutor may properly comment on
the evidence and all legitimate inferences which logically flow therefrom. See Hughes v. State,
437 A.2d 559, 573 (Del. 1981). For instance, a "prosecutor is permitted - indeed expected - to
comment on the evidence that was presented at trial and connect the dots for the jury by
explaining what each piece of evidence means and how it all fits together to prove his or her
case." United States v. Hoffecker, 530 F.3d 137, 194 (3d Cir. 2008).
In this case, Perkins has not provided any argument or evidence to rebut the Delaware
state courts' conclusion that the prosecutor's characterization of the photographs was supported
by the evidence, and the trial transcript actually reveals that the prosecutor questioned the quality
of the photographs during his cross-examination of Kevin. (D.!. 15, App. to Appellant's Br. in

Perkins v. State, No. 126,2006 at A-I77) Therefore, the court concludes that the Delaware
Supreme Court reasonably applied Strickland in denying this claim, because the prosecutor's

17

statement constituted a proper inference based on the evidence presented at tria1. 6
Perkins also contends that counsel erred by failing to object to the following prosecutorial
statement as improper vouching about the "good faith of the police department's credibility [with
respect to the department's] failure to preserve exculpatory evidence" (D.!. 2 at 28):
What would it do to the State's case if her prints were on the [ammunition] box?
Nothing. The box was out on the floor. You saw it on the floor. It doesn't prove
anything. The fact that her prints were on there wouldn't prove that she brought them to
the scene. That's why [the fingerprint analysis] wasn't done.
The Delaware Supreme Court rejected this ineffective assistance argument after determining that
the comments did not constitute vouching because the comments were supported by the evidence
presented at trial. 7
Once again, the court concludes that the Delaware Supreme Court reasonably applied

Strickland in rendering this decision. Improper prosecutorial vouching occurs when: (1) the
prosecutor assures the jury of a witness' credibility; and (2) the assurance is based on the
prosecutor's personal knowledge or on information not contained in the record. United States v.

Lawn, 355 U.S. 339, 359 n. 15 (1958); see also United States v. Walker, 155 F.3d 180, ] 84 (3d
Cir. 1998). Here, however, the transcript of the closing arguments reveals that defense counsel
raised the issue of the police department's failure to test the fingerprints found on the

6The court concludes that Perkins cannot establish that he was prejudiced by counsels'
failure to object to the statements for one additional reason: the jury members were able to draw
their own conclusions about the quality ofthe photographs because the photos were admitted into
evidence at trial.
7Although the Delaware Supreme Court applied Delaware's standard for improper
prosecutorial vouching, the state standard complies with the aforementioned federal standard.
Therefore, the Delaware Supreme Court's decision was not contrary to clearly established federal
law. Matteo v. Superintendent, SCI Albion, 171 F .3d 877, 889 (3d Cir. 1999).

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ammunition box against Hawkins' fingerprints, stating
What would that do to the State's case ifher (Le., Hawkins] fingerprints, in addition to
his, were found on this box? That is a piece of the puzzle they don't want you to have.
(D.I. 15, App. to Appellant's Op. Br. in Perkins v. State, No.1 26,2006, at A-283) This statement
insinuated that the police purposefully decided not to compare the other fingerprints on the box
with Hawkins' prints because finding Hawkins' prints would have negatively affected the State's
case. The prosecutor only made the allegedly improper statement about the reason the police did
not request a fingerprint analysis because he felt the need to address defense counsel's
speculative statement. When looked at in this context, the court concludes the prosecutor's
statement was a brief and appropriate response to defense counsel's speculative attacks on the
police department's credibility, and did not constitute improper injections of personal opinion or
facts not in evidence. Therefore, defense counsel did not provide ineffective assistance by failing
to object to a proper prosecutorial statement.
b. Perkins' prior firearm conviction
Perkins also contends that the prosecutor's remarks suggesting that he had a gun prior to
the murder were improper because they misled the jury to believe that the gun he previously
possessed was the same gun used to kill Hawkins. However, Perkins testified at trial that he had
a gun prior to December 2002,8 the time of Hawkins' murder. Therefore, this particular
contention fails to satisfy either prong of Strickland, because the prosecutor's comment was
properly based upon evidence presented at trial

g(D.I. 15, App. to Appellant's Op. Br. in Perkins v. State, NoJ26,2006, at A-243)
19

3. Failure to Move to Sever Person Prohibited Charges
Next, Perkins contends that counsel was ineffective for failing to move to sever the
possession of a deadly weapon by a person prohibited charges from the remainder of the
indictment. This claim is unavailing. Prior to trial, defense counsel obtained a stipulation from
the State that Perkins was a person prohibited, and successfully removed the underlying offense
(carrying a concealed weapon) from the indictment. See Perkins, 2008 WL 240623, at *5.
Because the underlying charge making Perkins a person prohibited was removed from the
indictment, the jury was never told the nature of Perkins' prior felony conviction for carrying a
concealed weapon. Relying on this procedural history, the Delaware state courts held that
Perkins did not establish that he was prejudiced by defense counsel's failure to move to sever the
possession of a deadly weapon by a person prohibited charges from the remainder of the
indictment.
In this proceeding, Perkins again contends that counsel was ineffective for failing to move
to sever the possession of a deadly weapon by a person prohibited charges from the remainder of
the indictment. He alleges that he was prejudiced by counsel's failure to sever because the "trial
court's self-defense instructions on the PDWBPP charges improperly permitted the jury to
consider [his] prior ex-felon status as substantive evidence to first degree murder and PFDCF."
CD.I. 2 at 39) The court is not persuaded. Counsels' action did not fall below an objective
standard of reasonableness, because they succeeded in getting the underlying offense of carrying
a concealed weapon removed from the indictment and in obtaining a stipulation regarding the
PDWPP charges. In turn, counsels' failure to sever the two PDWPP charges did not prejudice
Perkins' defense, because the nature of Perkins' prior felony conviction was not disclosed to the

20

jury. Accordingly, the court will deny this claim.
4. Failure to Request Lesser-Included Offense Instructions
Perkins also contends that counsel was ineffective for failing to properly advise him with
respect to his decision about whether to ask for lesser included offense instructions for the charge
of first degree murder. The Delaware state courts rejected this argument after determining that
defense counsel had several discussions with Perkins regarding the lesser included offense
instructions, and that Perkins was aware of the ramifications of his decision not to seek
instructions on lesser included offenses. The state courts also concluded that defense counsels'
decision not to request a lesser included offense instruction was both tactical and objectively
reasonable.
After reviewing the record, the court concludes that the Delaware Supreme Court
reasonably applied Strickland in rejecting the instant argument. As recognized by the Supreme
Court, there may be circumstances where a defendant's failure to request an instruction on lesser
included offenses can be proper trial strategy,9 such as when the defendant is pursuing an "all or
nothing" strategy because he believes that the State has not successfully proven the elements of a
charged offense. See State v. Brower, 971 A.2d 102, 107 (Del. 2009). Moreover, "[i]n
Delaware, ... the trial judge does not consider whether there is a rational basis in the evidence to
instruct the jury on a lesser-included offense unless requested to do so by a party." Id. at 108.

9See Spaziano v. Florida, 468 U.S. 447, 456 (1984)("there may well be cases in which the
defendant will be confident enough that the State has not proved capital murder that he will want
to take his chances with the jury"); Hooks v. Ward, 184 F.3d 1206, 1234 (loth Cir. 1999)("[J]n
the context of instructions on lesser included offenses, we see particular strategy reasons why a
defendant might not want to present to jury with a compromise opportunity."); United States v.
Chandler, 996 F.2d 1073, 1099 (1 ph Cir. 1993).
21

Here, the transcript of Perkins' colloquy with the trial court demonstrates that defense counsel
fully informed Perkins about his options with respect to lesser included offense instructions, and
that Perkins made a conscious decision to forego any lesser-included offense instructions with
respect to the first degree murder charge. In fact, defense counsel discussed lesser included
instructions with Perkins on at least three occasions, and warned him of the danger of an "all or
nothing" strategy. Perkins, 2008 WL 2406231, at *6. And, considering that the overall defense
strategy was to present the theories of self-defense and accidental homicide, defense counsel felt
a "strict interpretation of the requested jury instruction devoid of a lesser included offense should
lead the jury to find movant did not have the requisite intent for Murder in the First Degree or the
related charges and felt that absent such intent, the jury must legally acquit the defendant." Id.
Perkins and counsel "felt that this approach was risky but worth the effort," and that instructing
the jury on lesser-included offenses would have undermined that strategy. Id.
In short, counsel decided to forego lesser included offense instructions only after careful
consideration of the facts and the law, and after discussing the choice with their client. Thus,
when viewed in context with the overall defense theory, the court concludes that Perkins has not
rebutted the strong presumption that counsels' conduct fell within the wide range of objectively
reasonable assistance. See Strickland, 466 U.S. at 689.
5. Failure to Object to Inadequate Jury Instructions
The trial court gave the following standard unanimity instruction at the end of Perkins'
trial:
Please understand that you are the sole judges of the facts of the case and the law does not
permit me to comment on the evidence and nothing I say or have said in these
instructions or nothing I've said during trial is meant to suggest the Court has any opinion
on the weight of the evidence or has intended to favor either side. It is your duty to
22

determine the facts and to determine them only from the evidence in this case. You are to
apply the law as defined in these instructions to the facts, and in this way decide the case.
You have a duty to consult with one another and to deliberate with an open mind and
with a view to reaching a verdict. And as you know, all 12 jurors must unanimously
agree to the jury's verdict. Each of you should decide the case for yourself but only after
impartially considering the evidence with your fellow jurors. And in the course of
deliberations, do not hesitate to reexamine your first impression or to change your
opinion if you are convinced by the discussions. However, you should not surrender your
own opinion as to the weight or effect of the evidence solely because of the opinions of
your fellow jurors or for the mere purpose of returning a verdict. You are officers of the
court and you must act impartially, that is, without favoring either side, but based on the
evidence and with a desire to declare a proper verdict.
(D.I. 15, App. to Appellant's Op. Br. in Perkins v. State, No. 126,2006, at A295-296). In his Rule
61 proceeding, Perkins alleged that counsel provided ineffective assistance by failing to request a
separate unanimity instruction that the jury must agree unanimously upon the criminal act or acts.
Perkins based this claim on the Delaware Supreme Court case Probst v. State, 547 A.2d 114
(Del. 1998). In Probst, the State prosecuted under multiple theories for a single charge of
assault, namely, that Probst was guilty by virtue of her own conduct (shooting the victim herself)
or, in the alternative, as an accomplice to her brother's conduct. The Probst court held that a
separate unanimity instruction was required because, although there was only one charge of
assault, there was evidence of two separate shots being fired by two different people. However,
in Perkins' case, the Delaware state courts concluded that the Probst rule was inapplicable,
because there were no simultaneous actions by two individuals; rather, Hawkins was shot by a
single gun and a single individual. Given these circumstances, the Delaware courts denied
Perkins' ineffective assistance of counsel claim.
Now, in this proceeding, Perkins again asserts that counsel was ineffective and violated
the rule announced in Probst by failing failure to request separate unanimity instructions for the

23

possession of a deadly weapon or ammunition by a person prohibited charges and the first degree
murder charge. The court is not persuaded. Perkins has not only failed to demonstrate that the
standard jury unanimity instruction was inadequate, but also that a Probst unanimity instruction
was even available in his circumstances. As explained by the Superior Court, unlike the situation
in Probst, "the fatal shooting of Hawkins involved a single individual with a single gun and not
simultaneous actions by two individual each firing separate weapons at the same victim."

Perkins, 2008 WL 2406231, at *6. "Although three different theories of liability were
asserted,"10 Id., the two theories asserted by the defense were premised on the proposition that
Perkins accidentally shot Hawkins, not that Hawkins was killed by a bullet shot by someone
other than Perkins. Accordingly, the court will deny the instant claim because Perkins has failed
to satisfy either prong of Strickland.

B. Claim Two: Brady Violation
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." In claim two, Perkins alleges that his due process rights
were violated because the State destroyed and/or suppressed the following exculpatory material
in violation of Brady: (1) the bullet lodged in his apartment ceiling; (2) the gun that was thrown
into the river; (3) a comparison between Hawkins' fingerprints and other prints found in his
apartment; (4) the clothes he was wearing at the time of his arrest; and (5) gunpOWder residue on
Hawkins' hand and fingernails. Significantly, however, Perkins' filings in this proceeding

IOThe third theory was the State's theory of intentional murder.

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clearly demonstrate that his true contention is that the State failed to gather and secure the
aforementioned evidence, not that the State suppressed and/or destroyed such evidence.
Although Brady prohibits the government from suppressing and/or destroying evidence favorable
to the accused that is in its actual or constructive possession, it does not require that the
government gather evidence or conduct an investigation on behalf of the defense, especially
when the defense knows about the evidence, has equal access to the evidence, and makes no
request for the evidence. See, e.g., United States v. Perdomo, 929 F.2d 967,973 (3d Cir.
1991)("Evidence is not considered to be suppressed if the defendant either knew or should have
known of the essential facts permitting him to take advantage of any exculpatory evidence.");

United States v. Tadros, 310 F.3d 999, 1005 (Jh Cir. 2002); United States v. White, 970 F.2d
328, 337 (7th Cir. 1992)("Evidence cannot be regarded as suppressed by the government when the
defendant has access to the evidence before trial by the exercise of reasonable diligence."). The
record reveals that Perkins was aware of all the alleged Brady evidence he describes in this
claim. Thus, as an initial matter, the court questions whether claim two asserts even a prima
facie Brady violation.
Nevertheless, the court will deny claim two as procedurally barred from habeas review.
Although Perkins raised his Brady claim to the Delaware Supreme Court on post-conviction
appeal, the Delaware Supreme Court held that the claim was procedurally defaulted under
Delaware Superior Court Rule 61 (i)(3) because he did not raise the issue on direct appeal. By
applying the procedural bar of Rule 61(i)(3), the Delaware Supreme Court articulated a "plain
statement" under Harris v. Reed, 489 U.S. 255, 263-4 (1984), that its decision rested on state law
grounds. Superior Court Criminal Rule 61 constitutes an independent and adequate state

25

procedural rule precluding federal habeas review. See McCleqfv. Carroll, 416 F. Supp. 2d 283,
296 (D. DeL 2006); Mayfield v. Carroll, 2005 WL 2654283 (D. DeL Oct. 11, 2005). Thus, the
court cannot review the merits of the aforementioned claim absent a showing of cause for the
default and prejudice resulting therefrom, or upon a showing that a miscarriage ofjustice will
occur if the claim is not reviewed.

It is well-settled that an attorney's failure to properly preserve a claim for review in state
court can constitute cause for a procedural default if the assistance was "so ineffective as to
violate the Federal Constitution." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). As
previously discussed, the court has concluded that Perkins' ineffective assistance of counsel
claims regarding the aforementioned missing, destroyed, or suppressed evidence lack merit.
Therefore, to the extent Perkins attempts to blame his default of the Brady claim on counsel's
failure to raise the Brady issue on direct appeal, it is unavailing.
Although not necessary, the court also finds that Perkins has failed to establish
prejudice, because he has not demonstrated that the evidence at issue was eXCUlpatory.
Significantly, as explained by defense counsel, further testing and/or searching could have
actually inculpated Perkins, which, in turn, would have eliminated the possibility of his self­
defense/accidental homicide defense at trial.
And finally, the miscarriage ofjustice exception to the procedural default doctrine is
inapplicable, because Perkins has not provided any new reliable evidence of his actual innocence.
Accordingly, the court will deny claim two as procedurally barred.

IV. MOTION TO STAY
During the pendency of this proceeding, Perkins filed a motion to stay the case for an

26

extra sixty days to provide him with an opportunity to retain counseL (D.I. 25) The court will
deny the motion, however, because Perkins is not eligible for a stay; his petition does not contain
any unexhausted claims and AEDPA's one-year limitations period is not an issue in this case.

See Rhines v. Weber, 544 U.S. 269 (2005); Pliler v. Ford, 542 U.S. 225 (2004).
V. CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 petition, the court must also
decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating "that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a federal court denies a habeas petition on
procedural grounds without reaching the underlying constitutional claims, the court is not
required to issue a certificate of appealability unless the petitioner demonstrates that jurists of
reason would find it debatable: (1) whether the petition states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its procedural ruling. Id.
The court has concluded that Perkins' petition fails to warrant federal habeas relief. The
court is persuaded that reasonable jurists would not find this conclusion to be debatable.
Therefore, the court will not issue a certificate of appealability.

VI. CONCLUSION
For the reasons stated, Perkins' petition for habeas relief pursuant to 28 U.S.C. § 2254 is
denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.

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