Perkins v. Schmitt

Filing 19

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petition of Kenneth Perkins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 is denied. His request for a hearing 18 is likewise denied. IT IS FURTHER ORDERED that a Certificate of Appealability will not issue in this action because petitioner has not made a substantial showing of a denial of a constitutional right. A separate Judgment is filed herewith. Signed by District Judge Catherine D. Perry on September 18, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH PERKINS,
Petitioner,
v.
DAVID SCHMITT,
Respondent.

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No. 4:14 CV 1505 CDP

MEMORANDUM AND ORDER
Petitioner Kenneth Perkins is civilly committed in the custody of the
Missouri Department of Mental Health, having been found by a jury to be a
sexually violent predator under Missouri’s Sexually Violent Predator Act, Mo.
Rev. Stat. §§ 632.480, et seq. He brings this petition for writ of habeas corpus
under 28 U.S.C. § 2254, arguing that his judgment and commitment under the Act
was unconstitutionally obtained. I will deny the petition.
Procedural Background
On June 22, 2004, Perkins pled guilty to one count of child molestation first
degree. He received a suspended imposition of sentence and was placed on
supervised probation for three years. Perkins’ probation was revoked on April 15,
2005, and he was sentenced to five years’ imprisonment.
Prior to Perkins’ scheduled release in March 2010, the State petitioned the

Circuit Court of Dent County, Missouri, to civilly commit Perkins as a sexually
violent predator (SVP) under the Act. (Resp. Exh. B at 14-16.) The matter went to
trial and, in November 2012, a Dent County jury found Perkins to be an SVP. The
court entered judgment on November 7, 2012, and Perkins was committed to the
custody of the Missouri Department of Mental Health.1 The Missouri Court of
Appeals affirmed this judgment and commitment on August 13, 2014. (Resp. Exh.
E.)
Perkins signed this federal habeas petition on August 19, 2014, and
deposited it in the prison mailing system that same date. The petition was received
by this Court and filed on September 2, 2014.
Grounds for Relief
In his original petition for writ of habeas corpus, Perkins raises two grounds
for relief: 1) that there was insufficient evidence for the jury to find that he met the
statutory definition of an SVP, and 2) that the State attorney’s closing argument
violated his right to due process. In February 2015, Perkins raised an additional
claim that the Act is overbroad in that it wrongfully permits first offenders to be
adjudged an SVP without providing them an opportunity to demonstrate that
intervention would deter re-offending (see ECF #14).
In response, respondent argues that I should defer to the decision of the
1

Perkins is currently committed to the Sex Offender Rehabilitation and Treatment Service
program at the Sexual Offender Treatment Center in Farmington, Missouri.
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Missouri Court of Appeals and find the claims raised in Perkins’ original petition
to be without merit. Respondent has not addressed Perkins’ additional claim.
Standard of Review
Federal habeas review is available to challenge a State court order of civil
commitment, even though the order was not the result of a criminal conviction.
Duncan v. Walker, 533 U.S. 167, 176 (2001). Courts have regularly reviewed civil
commitment proceedings relating to the involuntary commitment of sex offenders
under State statutes, see Poole v. Goodno, 335 F.3d 705 (8th Cir. 2003); Linehan v.
Milczark, 315 F.3d 920 (8th Cir. 2003), and this Court has applied habeas corpus
analysis to claims challenging civil commitments under Missouri’s Sexually
Violent Predator Act. See, e.g., Fogle v. Blake, 4:06 CV 900 RWS (AGF), 2006
WL 3469613 (E.D. Mo. Nov. 29, 2006), adopted by, 2006 WL 3792627 (E.D. Mo.
Dec. 20, 2006); Jones v. Blake, No. 4:06 CV 402 ERW (DDN), 2008 WL 4820788
(E.D. Mo. Nov. 5, 2008).
In order to obtain federal habeas review of a claim raised in a § 2254
petition, the petitioner must have first raised the federal constitutional dimensions
of the claim in State court in accordance with State procedural rules. Duncan v.
Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu v. Minnesota, 583 F.3d 570,
573 (8th Cir. 2009) (quoting Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.
1988)). If the petitioner failed to properly present the claim in State court, and no
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adequate non-futile remedy is currently available by which he may bring the claim
in that forum, the claim is deemed procedurally defaulted and cannot be reviewed
by the federal habeas court “unless the [petitioner] can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also
Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).
Where the State court adjudicated a claim on the merits, federal habeas relief
can be granted on the claim only if the State court adjudication “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,”
28 U.S.C. § 2254(d)(1); or “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)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law
must be clearly established at the time petitioner’s State conviction became final,
and the source of doctrine for such law is limited to the United States Supreme
Court. Id. at 380-83.
A State court’s decision is “contrary to” clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of
law or different than the Supreme Court’s conclusion on a set of materially
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indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d
589, 591 (8th Cir. 2001). A State court’s decision is an “unreasonable application”
of Supreme Court precedent if it “identifies the correct governing legal principle
from [the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams, 529 U.S. at 413. Merely erroneous or
incorrect application of clearly established federal law does not suffice to support a
grant of habeas relief. Instead, the State court’s application of the law must be
objectively unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th
Cir. 2011). Finally, when reviewing whether a State court decision involves an
“unreasonable determination of the facts” in light of the evidence presented in the
State court proceedings, a federal court must presume that State court findings of
basic, primary, or historical facts are correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Rice v.
Collins, 546 U.S. 333, 338-39 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th
Cir. 2007). Erroneous findings of fact do not ipso facto ensure the grant of habeas
relief. Instead, the determination of these facts must be unreasonable in light of the
evidence of record. Collier, 485 F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024,
1030 (8th Cir. 2001).
I am “bound by the AEDPA [Antiterrorism and Effective Death Penalty Act]
to exercise only limited and deferential review of underlying state court decisions.”
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Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). To obtain habeas relief,
Perkins must show that the challenged State court ruling “rested on ‘an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’” Metrish v. Lancaster, 569 U.S. 351, ___, 133 S. Ct.
1781, 1786-87 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102-03
(2011)). This standard is difficult to meet. Metrish, 133 S. Ct. at 1786.
Ground 1 – Sufficiency of the Evidence
In his first ground for relief, Perkins claims that the evidence was
insufficient to support the jury’s finding that he met the definition of an SVP under
the Act. Perkins bases this challenge on allegedly inadmissible documents, which
he claims were: 1) relied upon by the psychological expert to support his opinion
that Perkins suffered from a mental abnormality that caused him great difficulty
controlling his behavior, and 2) improperly used to impeach Perkins’ trial
testimony. Perkins argues that because the documents themselves were
inadmissible, they should not have been used to present other evidence to the jury,
whether through expert testimony or challenges to Perkins’ own testimony.
Perkins argues that without the evidence adduced from the use of these documents,
there would have been insufficient evidence from which a jury could find that he
met the statutory criteria of an SVP.
This claim is not cognizable in this federal habeas proceeding. It is well
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settled that evidentiary issues in State court proceedings are matters of State law
and are not reviewable in federal habeas proceedings. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991); Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir. 1997). While
Perkins couches his claim as one of due process by challenging the sufficiency of
the evidence, I cannot determine the substance of his claim without deciding that
the expert’s opinion or the challenged impeachment evidence was inadmissible at
trial. “This [I] cannot do.” Sweet, 125 F.3d at 1154.
Accordingly, federal habeas relief is unavailable to Perkins on this claim.
Sweet, 125 F.3d at 1154.2
Ground 2 – Prosecutorial Misconduct / Closing Argument
In his second ground for relief, Perkins claims that he was denied due
process when, during closing argument, the State improperly focused on the effect

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Even if the claim were cognizable in this proceeding, it appears to be procedurally defaulted.
In State court, Perkins challenged the sufficiency of the evidence on appeal of his judgment and
commitment but relied on a different factual basis than that raised here. On appeal, Perkins
argued that the psychological expert’s testimony itself – as presented to the jury – did not support
a finding that he met the criteria of being a sexually violent predator. (See Resp. Exh. C at 1929.) In this habeas petition, however, Perkins argues that the expert’s opinion should not have
been admitted at all at trial because of the underlying evidentiary issues relating to the
documents he reviewed, and that without the expert’s testimony there would have been
insufficient evidence to support a finding that he met the SVP criteria. He also raises additional
facts regarding his own impeachment that were not raised in State court. In order to avoid
procedural default, a claim in State court must contain the same factual grounds as asserted in the
federal habeas petition. Palmer v. Clarke, 408 F.3d 423, 430 (8th Cir. 2005); Forest v. Delo, 52
F.3d 716, 719 (8th Cir. 1995). See also see Ward v. Norris, 577 F.3d 925, 935-36 (8th Cir. 2009)
(federal habeas claim cannot be based on different facts than those presented to the State court).
Because Perkins’ claim on appeal in State court did not contain the same factual bases as
presented here, it would appear that the claim raised in this habeas petition, if cognizable, would
be barred from review.
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his conduct had on the victims rather than on whether the evidence showed him to
meet the SVP criteria. Perkins raised this claim on appeal of his judgment and
commitment. Upon review of the merits of the claim, the Missouri Court of
Appeals denied relief. I therefore turn to the merits of this claim, exercising
limited and deferential review of the underlying State court decision as required by
the AEDPA.
In determining whether the State’s closing argument violated Perkins’
constitutional rights, the pertinent inquiry is “whether the prosecutors’ comments
‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The test applied to
determine whether error makes a trial fundamentally unfair is whether there is a
reasonable probability that the verdict might have been different had the error not
occurred. Lisenba v. California, 314 U.S. 219, 236 (1941); Hamilton v. Nix, 809
F.2d 463, 470 (8th Cir. 1987). I may grant Perkins habeas relief only if “the
prosecutor’s closing argument was so inflammatory and so outrageous that any
reasonable trial judge would have sua sponte declared a mistrial.” James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). With “the strict due process
standard of constitutional review, the deferential review mandated by the AEDPA,
and [this Court’s] less reliable vantage point for gauging the impact of closing
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argument on the overall fairness of a trial,” my review of whether the State’s
closing argument violated Perkins’ right to due process is “exceptionally limited.”
Id.; see also Sublett v. Dormire, 217 F.3d 598, 600 (8th Cir. 2000).
During closing argument, Perkins’ counsel made the following argument to
the jury:
You heard Kenny testify about every humiliating thing that he did and
that he admitted to. And that, what he was honest about, is now being
held against him.
Was honesty the best policy for Kenny? Was honesty really the
best policy for him when he came in and cooperated with law
enforcement and said exactly what he’d done? When he got placed on
probation and told about the dog, that was honest. Was that really the
best policy for him?
(Resp. Exh. E, Mo. Ct. App. Statement at 3, n.1.) During its rebuttal
closing, the State attorney responded:
He wants to complain that this is what he gets for being honest?
Like we’re supposed to pat him on the back because he’s been
forthcoming about all the disgusting things he’s done with children?
Honesty is good because it helps us decide what to do with Kenneth
Perkins, and it was good because it helps the victims get the help that
they need after --(Id.) Defense counsel objected to the State attorney’s reference to the victims
getting help, arguing that it was prejudicial, not relevant to the case, and argued
facts not in evidence. (Resp. Exh. A at 364-65.) The trial court denied counsel’s
request for mistrial and instructed the State to “try and stay away from that.” (Id.
at 365-66.) The court also instructed the jury to “recall the evidence as it was
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presented to them from testimony.” (Id. at 366.)
The Missouri Court of Appeals denied Perkins’ claim that the State’s
comment regarding the needs of the victims deprived him of due process. Noting
that the comment was “one partial sentence interrupted by an objection,” that the
State then “stayed away” from the subject as instructed by the trial court, and that
the trial court gave the jury a correcting instruction, the court of appeals
determined that Perkins was not prejudiced by the comment or by the court’s
failure to grant a mistrial. (Resp. Exh. E at 3-4.) For the following reasons, this
determination was neither contrary to nor an unreasonable application of clearly
established federal law.
To decide whether improper argument violates due process, a reviewing
court must consider “the type of prejudice that arose from the argument, what
defense counsel did to minimize the prejudice, whether the jury received proper
instructions, and whether there is a reasonable probability of a different . . .
decision absent the improper argument.” Rodden v. Delo, 143 F.3d 441, 446 (8th
Cir. 1998) (citing Darden, 477 U.S. at 181). As summarized above, the Missouri
Court of Appeals did that here. In view of the isolated and abbreviated nature of
the State’s challenged statement, when considered with the court’s instruction to
the jury that it must recall the evidence as presented to it at trial and the “jury’s
‘common sense ability to put aside a particular type of overzealous advocacy,’” it
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cannot be said that the statement so infected the trial with unfairness that a
reasonable probability exists that the verdict might have been different had the
statement not been made. Lisenba, 314 U.S. at 236; Sublett, 217 F.3d at 601
(quoting James, 187 F.3d at 870).
Accordingly, under Darden and Lisenba, the Missouri Court of Appeals’
determination to deny Perkins relief on this claim was not contrary to clearly
established federal law, and the claim raised in Ground 2 of the petition is denied.
Additional Claim – Constitutionality of Statute
In his original habeas petition, deemed filed August 19, 2014, Perkins raised
two claims of error that occurred during the course of his trial, as dismissed above.
On February 9, 2015, he raised an additional claim that the Sexually Violent
Predator Act is overbroad in that it wrongfully permits first offenders to be
adjudged an SVP without providing them an opportunity to demonstrate that
intervention would deter re-offending. Because this additional claim is untimely
under the AEDPA, I cannot consider it.
As stated above, a challenge to civil commitment is properly brought by way
of a petition for writ of habeas corpus under 28 U.S.C. § 2254. Under the AEDPA,
§ 2254 petitions must be filed within one year after the conclusion of direct review
in State court. 28 U.S.C. § 2244(d)(1)(A). This one-year period of limitations
applies to habeas petitions challenging a civil commitment. Cf. Duncan, 533 U.S.
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at 176 (addressing § 2244(d)’s statute of limitations and federal habeas review of
State court orders of civil commitments). See Hawker v. Budz, No. 10-20634-CIV,
2010 WL 4774650, at *4 (S.D. Fla. Sept. 30, 2010), adopted by, No. 10-20634CIV, 2010 WL 4738537 (S.D. Fla. Nov. 16, 2010).
Any amendments to a timely filed habeas petition are likewise required to be
filed within the AEDPA’s one-year limitations period. See United States v.
Craycraft, 167 F.3d 451, 456-57 (8th Cir. 1999) (addressing timeliness of
amendments to motion to vacate under § 2255); cf. McKay v. Purkett, 255 F.3d
660 (8th Cir. 2001) (per curiam) (applying Craycraft analysis to proposed
amendments to habeas petition filed under § 2254); Moore v. United States, 173
F.3d 1131, 1134 (8th Cir. 1999) (Congress intended to treat time limits in §§ 2254
and 2255 the same). Proposed amendments submitted beyond this one-year period
may be considered and determined by the Court only if the amendments “relate
back” to the claims raised in the timely filed original petition. Craycraft, 167 F.3d
at 456-57; McKay, 255 F.3d at 661. To relate back, the claims raised in the
proposed amendments must have arisen out of the same conduct, transaction, or
occurrence from which the original claims arose. Craycraft, 167 F.3d at 457
(citing Fed. R. Civ. P. 15(c)); McKay, 255 F.3d at 661.
Where, as here, a habeas petitioner does not seek transfer to the State’s
highest court after direct appeal, his judgment becomes final upon expiration of the
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time within which to seek such discretionary review, which, in Missouri, is fifteen
days after the court of appeals issues its decision. Gonzalez v. Thaler, 565 U.S.
134 (2012); Mo. S. Ct. R. 83.02 (2013). Because the Missouri Court of Appeals
issued its decision on August 13, 2013, Perkins had until August 28, 2013, to seek
discretionary review from the Missouri Supreme Court. He did not do so.
Accordingly, his judgment and commitment became final on August 28, 2013.
Perkins’ original petition was timely filed because it was deposited into the
prison mailing system on August 19, 2014,3 which was within the one-year
limitations period under the AEDPA. Perkins’ additional claim, however, was not
filed until February 2015. Because this new claim was submitted to the Court
beyond the one-year period within which he could bring habeas claims, I may
consider and determine the claim only if it “relates back” to the claims raised in the
timely filed original petition. Perkins’ new claim challenges the constitutionality
of the statute under which his commitment was secured, which is a claim distinctly
separate, in both time and type, from the deficiencies alleged in his original claims
of trial error. Therefore, Perkins’ additional claim does not relate back to his
original petition and is untimely. Further, because Perkins sought no other review
of his judgment and commitment (see Petn., ECF #1 at pp. 3-6), no tolling applies
to the one-year period of limitations in this case. 28 U.S.C. § 2244(d)(2).
3

See Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (prison mailbox rule), abrogated
on other grounds, Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008).
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Accordingly, because Perkins’ additional claim was untimely filed, I cannot
consider it. See Craycraft, 167 F.3d at 457; see also United States v. Duffus, 174
F.3d 333, 337-38 (3d Cir. 1999) (amendments introducing new theories on
different facts are "simply not acceptable").
Request for Hearing
Finally, Perkins requests a hearing on the issues raised in this action.
Because the existing record before the Court is sufficient to resolve Perkins’
claims, I will deny his request. Johnston v. Luebbers, 288 F.3d 1048, 1060 (8th
Cir. 2002).
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order denying habeas relief in a § 2254 proceeding unless a circuit
justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A).
To grant such a certificate, the justice or judge must find a substantial showing of
the denial of a federal constitutional right. 28 U.S.C. § 2253(c)(2); see Tiedeman
v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of
Perkins’ claims, so I will deny a Certificate of Appealability on all claims.
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Accordingly,
IT IS HEREBY ORDERED that the petition of Kenneth Perkins for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 [1] is denied. His request for a
hearing [18] is likewise denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue in this action because petitioner has not made a substantial showing of a
denial of a constitutional right.
A separate Judgment is filed herewith.

______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 18th day of September, 2017.

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