Perkins v. Florida Attorney General et al

Filing 15

OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; finding claim in 1 Petition for writ of habeas corpus as unexhausted and procedurally barred, or in the alternative denying. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 11/30/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTOINE PERKINS,
Petitioner,
v.

Case No: 2:15-cv-369-FtM-99CM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents. 1
/
OPINION AND ORDER
This matter comes before the Court upon an amended petition
for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by
Antoine Perkins (“Petitioner”) who is presently confined at the
South Bay Correctional Facility in South Bay, Florida (Doc. 1,
filed June 22, 2015).

Petitioner, proceeding pro se, attacks the

convictions and sentences entered against him by the Twentieth
Judicial Circuit Court in Hendry County, Florida for tampering
with physical evidence and resisting arrest. Id.
a response to the petition (Doc. 10).

Respondent filed

Petitioner filed a reply

(Doc. 14).

1

When the petitioner is incarcerated and challenges his
present physical confinement “the proper respondent is the warden
of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004)(citations omitted). In Florida,
the proper respondent in this action is the Secretary of the
Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.

Upon

review

Petitioner's

of

single

the
claim

record,
is

the

Court

unexhausted

and

concludes
without

that
merit.

Because the Court can resolve the Petition on the basis of the
record, an evidentiary hearing is not warranted.

See Schriro v.

Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the
factual allegations in the petition or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary
hearing).
I.

Background and Procedural History
On January 2, 2013, Petitioner was found guilty by a jury of

resisting arrest without violence (count one) and tampering with
physical evidence (count two) (Ex. 1).

Petitioner was sentenced

to 82 days in county jail on count one and to five years in prison
on count two (Ex. 2).

Florida’s Second District Court of Appeal

per curiam affirmed Petitioner's conviction and sentence (Ex. 6).
Petitioner filed the instant habeas petition on June 22, 2015
(Doc. 1).
II.

Governing Legal Principles
A.

Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)

Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in state
court unless the adjudication of the claim:
(1)

resulted in a decision that was contrary to,
or involved an unreasonable application of,

- 2 -

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).
to meet.

This standard is both mandatory and difficult

White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

A state

court’s summary rejection of a claim, even without explanation,
qualifies

as

deference.
2008).

an

adjudication

on

the

merits

which

warrants

Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

Notably, a state court’s violation of state law is not

sufficient to show that a petitioner is in custody in violation of
the “Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues its decision.

White, 134 S. Ct. at 1702; Carey v. Musladin,

549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,
412 (2000)).

That said, the Supreme Court has also explained that

“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard’ from [the Supreme Court’s]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

- 3 -

(2004)).

State courts “must reasonably apply the rules ‘squarely

established’ by [the Supreme] Court’s holdings to the facts of
each

case.

White,

134

S.

Ct.

at

1706

(quoting

Knowles

v.

Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief is appropriate only if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).

A decision is “contrary to” clearly

established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent

to

a

new

context

where

it

should

not

apply

or

unreasonably refuses to extend that principle to a new context
where

it

should

apply.”

Bottoson,

- 4 -

234

F.3d

at

531

(quoting

Williams, 529 U.S. at 406).

The unreasonable application inquiry

“requires the state court decision to be more than incorrect or
erroneous,” rather, it must be “objectively unreasonable.” Lockyer
v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell,
540 U.S. at 17-18; Ward, 592 F.3d at 1155.

The petitioner must

show that the state court's ruling was “so lacking in justification
that

there

was

an

error

well

understood

and

comprehended

in

existing law beyond any possibility for fairminded disagreement.”
White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S.
86 (2011)). Moreover, “it is not an unreasonable application of
clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely established
by [the Supreme] Court.” Knowles, 556 U.S. at 122.
When reviewing a claim under § 2254(d), a federal court must
bear in mind that any “determination of a factual issue made by a
State court shall be presumed to be correct[,]” and the petitioner
bears “the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v.
Titlow,

134

determination

S.
is

Ct.
not

10,

15

(2013)

unreasonable

(“[A]
merely

state-court
because

the

factual
federal

habeas court would have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

- 5 -

B.

Exhaustion and Procedural Default

The

AEDPA

precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted

all

means

of

available

relief

under

state

law.

Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270,
275-76 (1971)).

The petitioner must apprise the state court of

the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.

Snowden v. Singletary,

135 F.3d 732 (11th Cir. 1998).
In

addition,

a

federal

habeas

court

is

precluded

from

considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there
is a procedural default for federal habeas purposes regardless of
the decision of the last state court to which the petitioner
actually presented his claims).

- 6 -

Finally, a federal court must dismiss those claims or portions
of

claims

that

have

been

denied

on

adequate

and

independent

procedural grounds under state law. Coleman, 501 U.S. at 750.

If

a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim

in

state

court

and

actual

prejudice

from

the

alleged

constitutional violation. Spencer v. Sec' y, Dep't of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).

To show prejudice, a

petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the fundamental miscarriage of
justice,

only

occurs

in

an

extraordinary

case,

where

a

“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).

Murray v. Carrier, 477 U.S.

Actual innocence means factual innocence, not

- 7 -

legal insufficiency.
(1998).

Bousley v. United States, 523 U.S. 614, 623

To meet this standard, a petitioner must “show that it

is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).

“To be credible, a claim of actual innocence

must be based on [new] reliable evidence not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
Petitioner asserts that he was deprived of a fair trial in
violation of the Sixth and Fourteenth Amendments to the United
States Constitution because of the State’s introduction of general
criminal behavior through the testimony of the arresting police
officer (Doc. 1 at 5).

Specifically, Petitioner asserts that he

was stopped by the officer for failing to wear a seat belt and for
failing to completely stop at a stop sign. Id. at 6.

The officer

noticed that Petitioner was speaking unusually, and had “four
melted white kind of rock objects under his tongue[.]” Id.
objects tested positive for cocaine hydrochloride. Id.
the arresting officer was questioned by the State:
Q.

What, if anything did you notice
about the defendant's speech while
you were speaking to him?

A.

It seemed like he had some type of
impediment or he was just talking
odd. It seemed like he was trying,
forcefully trying to keep his tongue

- 8 -

The

At trial,

down as he spoke with me. His mouth
was more closed than you would when
you were trying to speak with
someone.
Q.

And were you able to observe
anything inside of his mouth while
you spoke with him?

A.

Yes. As I continued to speak with
the defendant about the traffic
violation and attempt to gain his
license
and
motor
vehicle
documentation, I observed – well, I
was looking down into his mouth area
under his tongue and it appeared to
be some – appeared to be several
rock like objects in his mouth area
that he was attempting to conceal.

Q.

Now, in your training and experience
as a law enforcement officer had you
ever seen white-in-color rock-like
objects before?

A.

Yes, sir.

Q.

Were the four rock-like objects that
you saw in the defendant's mouth
consistent with the appearance of
crack cocaine?

A.

Yes, sir.

Q.

In
your
experience
as
a
law
enforcement officer, is the mouth a
typical place were someone can hide
drugs?

A.

Yes, sir.

Q.

Specifically, is under the tongue a
typical place for possibly hiding
crack cocaine?

COUNSEL:

Objection, leading.

COURT:

Overruled

A.

One of the most common, yes, sir.
- 9 -

(T. at 132-33). On direct appeal, Petitioner argued that the
state’s question as to whether under the tongue is a typical hiding
place for crack cocaine was unfairly prejudicial (Ex. 4 at 13).
Petitioner, citing Griffin v. State, 872 So. 2d 998 (Fla. 4th DCA
2004), argued that the testimony was “improper and prejudicial
because it asked the jury to infer that [he] had crack cocaine
hidden in his mouth, which he later swallowed, since it is a common
practice.” Id. at 15.

Florida’s Second District Court of Appeal

denied the claim without a written opinion (Ex. 6).
Respondent

urges

that

Petitioner's

failure

to

raise

the

constitutional nature of this claim on direct appeal renders the
claim

unexhausted

(Doc.

10

at

10).

Indeed,

a

review

of

Petitioner's brief on appeal shows that he framed his claim and
argument in terms of state law only without making reference to
the United States Constitution, federal law, or even federal
cases. 2

For a habeas petitioner to fairly present a federal claim

to state courts:
It is not sufficient merely that the federal
habeas petitioner has been through the state
courts . . . nor is it sufficient that all the
facts necessary to support the claim were
before the state courts or that a somewhat
similar state-law claim was made. Rather, in
order to ensure that state courts have the
first opportunity to hear all claims, federal
courts “have required a state prisoner to
present the state courts with the same claim
2

Notably, although titled as a constitutional violation, the
argument supporting the instant claim is also presented solely in
terms of state law.
- 10 -

he urges upon the federal courts.” While we do
not require a verbatim restatement of the
claims brought in state court, we do require
that a petitioner presented his claims to the
state court “such that a reasonable reader
would understand each claim's particular legal
basis and specific factual foundation.
McNair

v.

Campbell,

416

F.3d

1291,

1302–03

(11th

Cir.

2005)

(emphasis added) (internal citations omitted). As part of such a
showing, the claim presented to the state courts “must include
reference to a specific federal constitutional guarantee, as well
as a statement of the facts that entitle the petitioner to relief.”
Reedman v. Thomas, 305 F. App’x 544, 545–46 (11th Cir. 2008)
(internal citation omitted).

Because he did not refer to any

“specific federal constitutional guarantee” in his brief on direct
appeal, Petitioner's federal due process challenge to admission of
the officer’s statement was not fairly presented to the state court
and is unexhausted.
Petitioner does not satisfy (or even allege) the cause and
prejudice, or fundamental miscarriage of justice exceptions to
overcome

the

procedural

default

of

this

claim.

Florida’s

procedural rules and time limitations preclude a second direct
appeal. Fla. R. App. P. 9.140(b)(3) (defendant wishing to appeal
a final judgment must do so within “30 days following rendition of
a written order”).

Consequently, Petitioner's claim cannot be

considered by this Court and is dismissed.

- 11 -

Even if Petitioner had properly exhausted this claim, it is
without merit. See 28 U.S.C. § 2254(b)(2) (“An application for a
writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in
the courts of the State.”).

It is well-settled that alleged trial

court errors in the application of state procedure or evidentiary
law, particularly regarding the admissibility of evidence, are
generally not cognizable as grounds for federal habeas relief. See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the
province

of

a

determinations

federal
on

habeas

state-law

court

to

questions.

reexamine
In

state-court

conducting

habeas

review, a federal court is limited to deciding whether a conviction
violated

the

States.”).

Constitution,

laws,

or

treaties

of

the

United

Generally, a state court evidentiary ruling cannot

rise to the level of a federal due process violation “unless ‘it
offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’” Montana
v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York,
432 U.S. 197, 202–03 (1977)).

Petitioner has presented nothing

in the way of Supreme Court precedence or other federal law to
convince

this

Court

that

the

officer’s

statement

at

trial

constituted fundamental error.
Moreover, even if constitutional error is found in a habeas
proceeding, it is still subject to a harmless error analysis under

- 12 -

Brecht v. Abrahamson, 507 U.S. 619 (1993). “The test . . . is
whether the error had substantial and injurious effect or influence
in determining the jury's verdict. Under this standard, habeas
petitioners may obtain plenary review of their constitutional
claims, but they are not entitled to habeas relief based on trial
error

unless

prejudice.”

they

Brecht,

can
507

establish
U.S.

at

that
637

it

resulted

(internal

in

actual

citations

and

quotation marks omitted).
This Court concludes that, even had the state trial omitted
the objectionable portion of the officer’s testimony, the jury
would not have reached a different verdict. The state court’s
admission of the officer’s statement that, in his experience, the
mouth is a common place for someone to hide drugs, did not result
in actual prejudice.

First, Petitioner was charged with tampering

with physical evidence -- not with possession of cocaine -- so any
implication that Petitioner put the white chalky substance in his
mouth because it was cocaine could not have resulted in prejudice. 3
Moreover, evidence was presented at trial that the substance found
within Petitioner's mouth actually was cocaine, so even if the
substance’s nature was relevant, the officer’s statement that
arrestees often hide rock cocaine in their mouths could not have

3

Evidence was presented bat trial that Petitioner refused to
spit out the objects in his mouth even when repeatedly ordered to
do so by the police and that Petitioner attempted to chew up and
swallow the objects (Ex. 8 at 134-37; 190-92).

- 13 -

had substantial and injurious effect or influence in determining
the jury's verdict (Ex. 8 at 168-70).

Petitioner fails to

demonstrate, in light of the entire trial record, actual prejudice
under Brecht.

Consequently, even if this claim were exhausted,

it warrants no federal habeas relief.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.

Certificate of Appealability 4
Petitioner is not entitled to a certificate of appealability.

A

prisoner

seeking

a

writ

of

habeas

corpus

has

no

absolute

entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (“COA”).

“A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were ‘adequate to deserve encouragement

4

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 applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.
- 14 -

to proceed further.’” Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003).

Petitioner has not made the requisite showing in these

circumstances.
Because

Petitioner

is

not

entitled

to

a

certificate

of

appealability, he is not entitled to appeal in forma pauperis.
ACCORDINGLY, it is hereby ORDERED:
1.

The Florida Attorney General is dismissed from this

action.
2.

The claim raised in the instant petition is unexhausted

and procedurally barred.

Alternatively, the claim is DENIED.

3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of Court is directed to terminate any pending

motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2015.

SA: OrlP-4
Copies: Antoine Perkins
Counsel of Record

- 15 -

30th

day