United States District Court, N.D. Alabama, Western Division
ROY E. PERKINS, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, WALTER MYERS, Acting Warden, Holman Correctional Facility, Respondent.
MEMORANDUM OPINION
SHARON
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.
This
case is presently before the court on Roy E. Perkins’s
Petition for a Writ of Habeas Corpus by a Person in State
Custody under a Death Sentence, (doc. 1), [1] seeking relief
from his state-court conviction for capital murder and death
sentence. Perkins was convicted of capital murder and
sentenced to death for the murder of Cathy Gilliam. He has
filed this petition seeking habeas relief pursuant to §
2254. For the reasons set forth below, the court finds that
Perkins’s Petition for a Writ of Habeas Corpus is due
to be denied.
TABLE
OF CONTENTS
I.
THE OFFENSE CONDUCT
........................................ 3
II.
THE SENTENCING ORDER
...................................... 9
III.
PROCEDURAL HISTORY
...................................... 14
IV.
STANDARD OF REVIEW
....................................... 17
V.
EVIDENTIARY HEARING
...................................... 19
VI.
DISCUSSION OF PERKINS’S CLAIMS
........................... 20
A. THE
STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE BY
FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE AND
OFFERING A FALSE STIPULATION
......................................... 20
1. Due
Process Violation Under Brady v. Maryland
............ 20
2. Due
Process Violation under Napue v. Illinois and
Giglio v. United States
............................................ 36
B. THE
STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO COUNSEL
BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR PRETRIAL
PREPARATIONS ....................... 43
C.
FAILURE TO GRANT A CHANGE OF VENUE
........................................................................................................
52
D.
ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR
TRIAL AND RELIABLE SENTENCE ............... 63
1.
Overlooked Claims or Presumed Ruling on the Merits ........
69
2.
Admission of Evidence of Prior Acts and Perkins’s Right
to Due Process ........................................... 71
a.
Evidence of the Rapes of D.W. and B.P ............... 79
b.
Incident at Darlene Hall’s House ....................
84
c. The
Gray Truck and the .357 Magnum Handgun ....... 88
3.
Failure to Give Limiting Instruction .......................
92
E.
SUFFICIENCY OF THE EVIDENCE .......................... 96
F.
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ...... 102
1.
Standard of Review ................................... 102
a. The
Performance Prong .......................... 104
b. The
Prejudice Prong ............................. 106
c.
Deference Accorded State Court’s Decisions .........
108
2.
Failure to Strike Juror V.H. . ...........................
110
3.
Failure to Request a Limiting Instruction ..................
132
4.
Failure to Investigate and Present Available Mitigating
Evidence ................................................ 151
5.
Failure to Challenge Perkins’s Rape Conviction
............ 177
G. THE
JURY’S CONSIDERATION OF EXTRINSIC EVIDENCE – THE
BIBLE IN THE JURY ROOM ............................ 202
H.
PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS DEATH
SENTENCE VIOLATES THE EIGHTH AMENDMENT
.........................................................................................................................
207
1. The
IQ Test Score – Intellectual Functioning ..............
215
2.
Adaptive Functioning ................................. 218
3.
Failure to Grant Evidentiary Hearing .....................
220
I. THE
BATSON CLAIM .....................................
222
VII.
CONCLUSION
.............................................. 232
CERTIFICATE
OF APPEALABILITY ............................... 232
I.
THE OFFENSE CONDUCT
The
following summary of the evidence relevant to the offense is
taken from the opinion of Alabama Court of Criminal Appeals
on direct appeal.
On August 9, 1990, at approximately 4:00 p.m., 33-year-old
Cathy Gilliam was abducted at gunpoint from her home in the
Tuscaloosa County community of New Lexington. Candace
Gilliam, Mrs. Gilliam’s daughter, testified that she
was in her bedroom at approximately 4:00 p.m. on August 9,
when she heard her mother scream. After this testimony,
Candace, who was 14 years old at the time of the trial, was
excused from the courtroom; in lieu of further live testimony
from Candace, it was stipulated that her testimony would have
been as follows had she continued to testify: When she heard
her mother scream a second time, Candace went to the kitchen.
There she saw a man holding her mother and pointing a black
pistol at her mother’s head. She heard her mother yell
for help and say “something about a rapist.”
[(Doc. 10, Vol. 11 at 1755.)] Candace watched as the man led
her mother outside to a vehicle parked behind her
mother’s car. She could not see the vehicle well, but
did notice that it was bigger than a car and that it was gray
in color. At that point, Candace telephoned her grandmother.
Candace was unable to give a detailed description of the man
who had abducted her mother, but she did tell police that the
man had brown, straight hair and a thin beard, and that he
was not much taller than her mother.
Maudeen Hood, a resident of New Lexington who lived two to
three miles from the Gilliam residence, testified that at
approximately 5:00 p.m. on August 9, Cathy Gilliam knocked on
her back door. According to Hood, Mrs. Gilliam stated that
she had been shot and that she was going to die, and she
asked Hood to call her father-in-law and to take her to the
hospital. Hood stated that she helped Mrs. Gilliam into her
kitchen, where Mrs. Gilliam lay on the floor; Hood then
telephoned Mrs. Gilliam’s father-in-law. When no one
answered, Hood telephoned for help. Mrs. Gilliam told Hood
that her assailant was about her husband’s size, had
long brown hair, a beard, and a mustache, and was driving a
gray pickup truck. Mrs. Gilliam also told Hood that her
assailant had brought her to Hood’s house and that he
had said that he did not mean to shoot her.
At approximately 5:15 p.m. on August 9, Norman Eldon
Willingham, an Alabama state trooper, and Harry Montgomery,
Chief Deputy Sheriff of the Tuscaloosa County Sheriff’s
Department, arrived at the Hood residence. Willingham
testified that upon arriving, he saw Mrs. Gilliam lying on
the kitchen floor; she had a gunshot wound to her chest. He
stated that although Mrs. Gilliam had been shot in the chest,
he immediately noticed that there was no hole in the front of
her shirt. He stated that Mrs. Gilliam appeared pale, that
she was having trouble breathing, and that she was
complaining of pain and asking for help. When Willingham
asked Mrs. Gilliam to describe her assailant, Mrs. Gilliam
told him that he was a white male, approximately 30 years
old, with medium-length hair and facial hair, and he was
driving a gray full-size pickup truck. In addition, Mrs.
Gilliam told Willingham that she had been sitting down when
she was shot, and that it had been at least one hour since
the shooting. Montgomery testified that he asked Mrs. Gilliam
if she knew her assailant, and that she responded that she
did not.
Gary Wayne Hunnicut, fire chief with the Samantha Volunteer
Fire Department, testified that he was dispatched to the Hood
residence on August 9, 1990. He stated that when he arrived,
Donnie Hallman, a fellow volunteer, was already on the scene
treating Mrs. Gilliam. In addition, both Willingham and
Montgomery were present. Hunnicut testified that while he and
Hallman were treating Mrs. Gilliam, he heard either
Willingham or Montgomery ask Mrs. Gilliam if Perkins was her
assailant. According to Hunnicut, Mrs. Gilliam
“grunted” and nodded her head in the affirmative.
[(Id., Vol. 12 at 1987.)] In addition, Hunnicut said
he heard Mrs. Gilliam grunt and saw her nod her head in the
affirmative when either Willingham or Montgomery asked her if
she had been shot with a pistol.
Scott Sassaman, a paramedic with the Suburban Ambulance
Company, testified that he arrived at the Hood residence at
approximately 5:46 p.m. on August 9. Hallman was already
working on Mrs. Gilliam. Sassaman stated that he took over
Mrs. Gilliam’s treatment and put Mrs. Gilliam in
“mass trousers” - air-filled pants that move
blood from the lower body to the upper extremities.
[(Id. at 2023.)] Sassaman stated that he saw no
gunpowder residue on Mrs. Gilliam. According to Sassaman,
Mrs. Gilliam was placed in the ambulance at approximately
6:00 p.m. While in the ambulance, Sassaman said, Mrs. Gilliam
expressed concern about her family and stated that she was
going to die. Mrs. Gilliam died in the ambulance on the way
to the hospital.
On August 10, 1990, Kenneth Warner, the State Medical
Examiner for Tuscaloosa County, performed an autopsy on Mrs.
Gilliam. Warner testified that Mrs. Gilliam died from a
gunshot wound to her chest that destroyed her liver. He
stated that, in addition to the gunshot wound, there was a
stab wound just above Mrs. Gilliam’s right collarbone.
The hyoid bone in Mrs. Gilliam’s neck was broken,
Warner said, and there was hemorrhaging in her neck muscles.
Warner stated that these injuries were consistent with a
struggle having taken place. Warner also stated that he found
no evidence that Mrs. Gilliam had been raped and that there
was no gunpowder residue around the gunshot wound. He
testified that if Mrs. Gilliam was wearing a shirt at the
time of the shooting, the absence of gunpowder residue around
the wound would be meaningless, but that if Mrs. Gilliam was
not wearing a shirt when she was shot, the absence of
gunpowder residue would indicate that the fatal shot was
fired from at least 18 inches away.
Vernon Hudson, Chief Deputy of the Fayette County
Sheriff’s Department, testified that he was driving
south on Highway 63 on August 9, 1990, at approximately 5:30
p.m., when he saw Perkins, whom he knew personally, driving
north in a gray pickup truck. Hudson stated that he knew
Perkins was wanted in connection with the shooting of a woman
in Tuscaloosa County, so he turned around and followed
Perkins. According to Hudson, he lost sight of the pickup
truck briefly when he turned around, but he saw dust on a
dirt road off Highway 63 and he turned down the road. Hudson
said he found a gray, 1979 Chevrolet pickup truck abandoned
just off the dirt road, and that the keys were in the
ignition. Hudson stated that he notified a dispatcher that he
had found the truck Perkins was driving and that he stayed
with the truck until the homicide unit arrived, at which
time, he said, he turned the truck over to Investigator J.R.
Simpson. Hudson testified that he found the truck
approximately one-half mile from the homes of Perkins’s
mother and grandmother.
Investigator Simpson testified that he responded to a call
regarding an abandoned truck believed to have been driven by
Perkins. He stated that when he arrived in Fayette County
just off Highway 63, he took photographs of the abandoned
truck. He stated that the truck had a gunshot hole in the
front windshield and a gunshot hole in the roof of the cab.
On cross-examination, he stated that he believed both holes
were caused by shots fired from within the truck, most likely
from the driver’s side. The truck was towed to the
homicide unit’s impound lot and was
“processed” for evidence by Simpson and Dr. John
McDuffie, a trace-evidence examiner with the Alabama
Department of Forensic Sciences.
At trial, Perkins stipulated to the following facts, which
the trial judge read to the jury:
“The defendant caused the death of Cathy Gilliam with a
.357 Magnum pistol. That’s number one. Number two, the
defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray
pickup truck shown in State’s Exhibit number 23. Number
three, Cathy Gilliam’s blood was found in the 1979 gray
Chevrolet pickup truck shown in State’s Exhibit number
23.”
[(Id., Vol. 13 at 2087.)]
The State presented evidence that Simpson and McDuffie found
a wallet containing Perkins’s driver’s license
and a fragment of a projectile in the gray truck. Fibers from
the shorts Mrs. Gilliam was wearing at the time of her
abduction were also found in the truck. Perkins’s
fingerprints were found on the outside of the driver’s
door of the truck. Further, both the driver and front
passenger seats contained reddish stains; the stained
portions of the seats were cut out and sent to Dr. Phyllis T.
Rollan, a forensic serologist with the Alabama Department of
Forensic Sciences. Dr. Rollan testified that the stain found
on the back of the front passenger seat was consistent with
Mrs. Gilliam’s blood.
After the abandoned truck was discovered, the police began
searching for Perkins in Fayette County. Bobby Mason, an
enforcement agent with the Alabama Alcoholic Beverage Control
Board, testified that he participated in the search for
Perkins in Fayette County. He stated that on August 11, 1990,
he found a campsite in the woods near the homes of
Perkins’s mother and grandmother. At the campsite,
Mason found quilts, cigarettes, various food items,
wire-cutters, 10 feet of rope, and a .357 Magnum handgun.
Baxter Pate, a police officer with the City of Northport,
also helped in the search for Perkins. Pate testified that at
approximately 3:50 p.m. on August 12, 1990, he found Perkins
lying on the ground in the woods near the houses of his
mother and grandmother. Pate stated that Perkins was crying
and whimpering and that he said, “Please, please,
don’t shoot me.” [(Id. at 2106.)] After
Pate told Perkins not to move, Perkins again stated,
“Please, don’t shoot me, ” and then said,
“I didn’t mean to do it . . . . I didn’t
mean to hurt her.” [(Id. at 2107.)] Pate
stated that he called for backup, and that several officers
arrived and handcuffed Perkins. At the time of his arrest,
Perkins had a gunshot wound to his right knee that he
suffered during a struggle with Mrs. Gilliam.
Darlene Hall, a resident of New Lexington who lived
approximately one to two miles from the Gilliam residence,
also testified at trial. Hall stated that at approximately
3:50 p.m. on August 9, 1990, Perkins came to her home and
asked to use her telephone to call a tow truck. According to
Hall, she recognized Perkins from a picture in a newspaper
article she had been reading, and she immediately retrieved a
gun from her bedroom closet. Perkins left when he saw the
gun. At trial, Hall positively identified Perkins as the man
who had come to her home on August 9.
In addition to Hall’s testimony, the State also
presented evidence of two rapes allegedly committed by
Perkins in the two weeks preceding the abduction of Mrs.
Gilliam – one committed on August 1, 1990, and one
committed on August 6, 1990. The State presented testimony
from the alleged rape victims, B.P. and D.W.; from the
doctors who treated them following the alleged rapes; from
the nurses who administered the rape kits; from Dr. Rollan,
who performed DNA tests on the rape kits from both victims
and compared them to Perkins’s DNA; and from the police
officers who investigated the alleged rapes.
Perkins v. State, 808 So.2d 1041, 1052-56
(Ala.Crim.App.1999), aff’d 808 So.2d 1143
(Ala. 2001), cert. granted and judgment vacated in part
sub nom. Perkins v. Alabama, 536 U.S. 953 (2002).
II.
THE SENTENCING ORDER
The
pertinent portions of the trial court’s sentencing
order are set forth below:
STATUTORY AGGRAVATING CIRCUMSTANCES
1. Alabama Code § 13A-5-49(1) The capital offense
was committed by a person under sentence of
imprisonment. This was proved beyond a reasonable doubt.
The Defendant was on parole for a ten (10) year sentence in
No. CC 83-9 in Fayette County, Alabama, when he committed the
offense, and thus was under a sentence of imprisonment.
Parole equates to being under sentence of imprisonment.
2. Alabama Code § 13A-5-49(2) The defendant was
previously convicted of another capital offense or a felony
involving the use or threat of violence to the person.
This was proved beyond a reasonable doubt. The Defendant was
convicted of Rape, First Degree, in No. 90-96 in Fayette
County, Alabama, on his plea, and Defendant was sentenced to
ninety-nine (99) years in prison. Defendant was represented
by Hon. Steven M. Nolen. Court records and testimony of
[B.P.] show this circumstance. The conviction must exist at
the time of sentencing, not necessarily at the time of the
act.
3. Alabama Code § 13A-5-49(3) The defendant
knowingly created a great risk of death to many persons.
This circumstance does not exist.
4. Alabama Code § 13A-5-49(4) The capital offense
was committed while the defendant was engaged or was an
accomplice in the commission of, or an attempt to commit, or
flight after committing, or attempting to commit, rape,
robbery, burglary or kidnapping. This was proved beyond
a reasonable doubt. This is an aggravating component of the
capital offense. The Defendant committed the capital offense
while he was engaged in . . . the commission of a kidnapping.
The jury verdict finding Defendant guilty of Murder
Kidnapping in the First Degree (capital murder) established
this circumstance beyond a reasonable doubt.
5. Alabama Code § 13A-5-49(5) The capital offense
was committed for the purpose of avoiding or preventing a
lawful arrest or effecting an escape from custody. This
circumstance does not exist.
6. Alabama Code § 13A-5-49(6) The capital offense
was committed for pecuniary gain. This circumstance does
not exist.
7. Alabama Code § 13A-5-49(7) The capital offense
was committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws. This
circumstance does not exist.
8. Alabama Code § 13A-5-49(8) The capital offense
was especially heinous, atrocious or cruel compared to other
capital offenses. This circumstance does not exist.
The Court did not rely on any statutory aggravating
circumstance except for the three (3) circumstances above
stated to have been proved. The facts did not establish the
existence of any other statutory circumstance. The Court has
not considered any fact or thing as a non-statutory
aggravating circumstance.
STATUTORY
MITIGATING CIRCUMSTANCES
The
Court has reviewed all statutory and non-statutory mitigating
circumstances, whether or not suggested by Defendant.
1. Alabama Code § 13A-5-51(1) The Defendant has no
significant history of prior criminal activity. This
circumstance does not exist. Defendant does have a
significant history of prior criminal activity as is shown by
the presentence report, excluding the juvenile charges.
Defendant’s history shows crimes of violence, including
a rape for which he was on parole when the murder of Cathy
Gilliam occurred. There was also testimony of two rapes by
Defendant within several days previous to the date of said
murder.
2. Alabama Code § 13A-5-51(2) The capital offense
was committed while the defendant was under the influence of
extreme mental or emotional disturbance. This
circumstance does not exist. Defendant had some degree of
mental or emotional disturbance, but the Court does not find
it to be to an extreme degree. Dr. Goff stated that Defendant
could tell the difference between right and wrong at the time
of the offense in this case. The MMPI-2 results indicated
Defendant might have been trying to overstate or exaggerate
any disturbance.
Defendant’s use of alcohol and drugs could have
contributed to his disturbance. If so, it was voluntary an
his part. Defendant was also able to elude large search
parties for a few days during a manhunt for him. Two isolated
incidents of seizures seem to have been caused by alcohol or
other substance abuse.
3. Alabama Code § 13A-5-51(3) The victim was a
participant in the defendant’s conduct or consented to
it. This circumstance does not exist. There was no
participation or consent by the victim.
4. Alabama Code § 13A-5-51(4) The defendant was an
accomplice in the capital offense committed by another person
and his participation was relatively minor. This
circumstance does not exist. There was no evidence of an
accomplice, and the Defendant’s participation was
major. Defendant admitted causing the death of Cathy Gilliam.
5. Alabama Code § 13A-5-51(5) The defendant acted
under extreme duress or under the substantial domination of
another person. This circumstance does not exist. No.
evidence showed Defendant was under duress or that another
person had anything to do with Defendant’s actions in
this case.
6. Alabama Code 13A-5-51(6) The capacity of the defendant
to appreciate the criminality of his conduct or to conform
his conduct to the requirements of law was substantially
impaired. The Court finds that this circumstance exists.
Dr. Goff said that Defendant s intelligence was in the lowest
6-7% or below 92% of the population. Defendant had a long
history of alcohol abuse with possible organic brain
dysfunction. Evidence also showed that Defendant abused
drugs.
Dr. Goff also diagnosed Defendant as borderline personality
disorder with paranoid features. This most likely affected
his judgment. No. psychosis was found through the evidence.
7. Alabama Code § 13A-5-51 (7) The age of the
defendant at the time of the crime. This circumstance
does not exist. Defendant was thirty (30) years of age at the
time this offense occurred. Defendant’s creative
suggestion of his being morally immature is rejected.
Defendant has had extensive criminal justice experience. Age
is not a mitigating circumstance.
Therefore, only one statutory mitigating circumstance exists.
As to non-statutory mitigating circumstances considered,
these include any aspect of the Defendant’s character
or record and any of the mitigating circumstances of the
offense and all other relevant mitigating circumstances that
the Defendant offered as a basis for a sentence of life
imprisonment without parole instead of death.
The Court considers the following non-statutory mitigating
circumstances to exist.
(1) Defendant took Victim near Ms. Hood’s house.
However, Victim said she’d been shot about an hour
earlier. This was a belated act, at best, and Defendant may
have been merely getting rid of the Victim.
(2) Defendant was drinking alcohol, taking pills and abusing
drugs during the general period of time of the offense.
However, this was voluntary.
(3) Defendant suffers from borderline personality disorder,
is an alcoholic, is of borderline intelligence, and probably
has organic brain dysfunction.
(4) Defendant was under mental or emotional disturbance,
although not to an extreme degree.
(5) Defendant lacked socialization and had a horrible
childhood, involving the death of his father, the drowning of
his brother in his presence, the sexual abuse of his sister
by his stepfather in his presence, physical abuse of
Defendant by his stepfather, being run away from home at a
very early age and being sexually abused.
(6) Defendant’s intelligence is below 92% of the
population, and he has a full scale I.Q. of 76.
(7) Defendant and his family were very poor, and Defendant
had to “raise himself”. His mother and stepfather
and other family members were alcoholics.
The Court considered all of the evidence as to non-statutory
mitigating circumstances, including the testimony of Mr. Ed
Owens, Dr. John Goff and Ms. Kathleen Snow, the presentence
investigation, the videotape offered by Defendant and all
other evidence submitted on circumstances of the
Defendant’s life, childhood, poor housing, and family
background. The Court carefully searched for and considered
all evidence in this case for circumstances of mitigation
because this is a capital murder case.
WEIGHING CIRCUMSTANCES
The Court has found three (3) existing statutory aggravating
circumstances beyond a reasonable doubt. The Court has found
only one (1) statutory mitigating circumstance to exist based
on the evidence, and has considered several existing
non-statutory mitigating circumstances. The Court has weighed
the three (3) existing statutory aggravating circumstances
and has weighed the one (1) existing statutory mitigating
circumstance and all of the existing non-statutory mitigating
circumstances. After having weighed the foregoing
circumstances, the Court has found that the three (3)
existing statutory aggravating circumstances greatly outweigh
all existing mitigating circumstances, both statutory and
non-statutory.
In deciding the sentence, the Court has ordered, received and
reviewed the presentence investigation report of Mr. Carl
Archibald, except that the last paragraph of the report was
not considered. Therefore, Mr. Archibald’s concurrence
with or recommendation of the death sentence was not
considered. The report did not contain any victim impact
statement.
The Court has considered the recommendation of the jury in
its advisory verdict, as required by law, but made this
consideration in view of the fact that the advisory jury
verdict is not binding on the Court. Although the advisory
verdict does not require the Court to give the death
sentence, the Court has been unable to justify a sentence of
life imprisonment without parole after having weighed all of
the circumstances previously stated. Furthermore, after full
and thorough consideration, the Court is compelled to accept
the recommendation of the jury. The Court fixes the
Defendant’s punishment as death.
(Doc. 10, Vol. 24, Tab 45 at 348-54.)
III.
PROCEDURAL HISTORY
In
April 1994, a Tuscaloosa County jury found Perkins guilty of
the capital murder of Mrs. Gilliam and recommended, by a vote
of ten to two, that he should be sentenced to death.
(Id., Vol. 16, Tab 25 at 2751; id., Vol.
18, Tab 36 at 3019.) On June 3, 1994, the trial court
followed the jury’s recommendation and sentenced
Perkins to death. (Id., Vol. 24, Tab 45 at 354.)
Perkins
appealed his conviction and sentence to the Alabama Court of
Criminal Appeals, which affirmed in 1999. See
Perkins, 808 So.2d 1041. The Alabama Supreme Court
affirmed the Court of Criminal Appeals on March 30, 2001.
Ex parte Perkins, 808 So.2d 1143 (Ala. 2001).
Perkins
petitioned the United States Supreme Court for writ of
certiorari. The Court granted his petition. The Supreme Court
vacated the judgment and remanded the case “for further
consideration in light of Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002).”[2] Perkins v. Alabama, 536 U.S. 953
(2002).
On
remand, after declining to allow additional evidence to be
presented, the Alabama Supreme Court held:
Applying the plain-error standard of review, we hold that
because, applying the most common definitions of mental
retardation, we find no indication in the record that Perkins
is mentally retarded, no reversible error occurred and the
imposition of the death sentence in this case is not
unconstitutional. Therefore, we affirm the judgment of the
trial court sentencing Perkins to death.
Ex parte Perkins, 851 So.2d 453, 457 (Ala. 2002).
The United States Supreme Court denied Perkins’s
petition for writ of certiorari October 6, 2003. Perkins
v. Alabama, 540 U.S. 830 (2003).
Perkins
filed a petition for post-conviction relief, commonly
referred to as a Rule 32 Petition after Ala. R. Crim. P. 32,
in the Circuit Court of Tuscaloosa County on January 29,
2004. The Circuit Court held an evidentiary hearing on some
of the claims in Perkins’s Rule 32 Petition, as
amended. On July 30, 2009, the Circuit Court denied
Perkins’s Rule 32 petition as amended. (See
doc. 10, Vol. 56, Tab 135 at 4488-4534.) Later, on September
3, 2009, the Circuit Court amended its order to deny two
claims it had overlooked in its July 2009 order. (See
id., Tab 137 at 4551-52.)
Perkins
appealed the denial of his Rule 32 Petition and the Court of
Criminal Appeals affirmed. Perkins v. State, 144
So.3d 457, 499 (Ala.Crim.App.2012). The Alabama Supreme Court
granted, but later quashed his writ of certiorari. The
Supreme Court denied his petition for writ of certiorari on
October 6, 2014. Perkins v. Alabama, 135 S.Ct. 56
(2014).
On
September 23, 2014, Perkins filed the instant Petition for a
Writ of Habeas Corpus by a Person in State Custody under a
Death Sentence, pursuant to 28 U.S.C. §
2254.[3] (Doc. 1.)
IV.
STANDARD OF REVIEW
As to
any claim “adjudicated on the merits in State court
proceedings, ” this court may not grant the Petition
. . . unless the adjudication of the claim –
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or
“(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. [42 U.S.C.
§ 2254(d).]
In applying this “highly deferential standard for
evaluating state-court rulings, . . . state-court decisions
[must] be given the benefit of the doubt.” [Cullen
v.] Pinholster, 563 U.S. [170, 181], 131 S.Ct.
[1388], at 1398 [(2011)](internal quotation marks omitted).
They must be reviewed solely on “the record that was
before the state court that adjudicated the claim on the
merits.” Id., at [181] . . . . And the
prisoner must rebut any state court factual findings he seeks
to challenge by clear and convincing evidence under §
2254(e)(1). Burt v. Titlow, 571 U.S. [12], [18], 134
S.Ct. 10, 15, 187 L.Ed.2d 348 (2013).
Brumfield v. Cain, 135 S.Ct. 2269, 2288-89 (2015).
“Deciding whether a state court’s decision
involved an unreasonable application of federal law[, §
2254(d)(1), ] or was based on an unreasonable determination
of fact[, § 2254(d)(2), ] requires the federal habeas
court to train its attention on the particular reasons
– both legal and factual – why state courts
rejected a state prisoner’s federal claims, and to give
appropriate deference to that decision.” Wilson v.
Sellers, 138 S.Ct. 1188, 1191-92 (2018)(internal
quotations and citations omitted). Nevertheless,
“‘[e]ven in the context of federal habeas,
deference does not imply abandonment or abdication of
judicial review, ’ and ‘does not by definition
preclude relief.’” Brumfield, 135 S.Ct.
at 2277 (quoting Miller–El v. Cockrell, 537
U.S. 322, 340 (2003)).
“When
the evidence leads very clearly to the conclusion that a
federal claim was inadvertently overlooked in state court,
§ 2254(d) entitles the prisoner to an unencumbered
opportunity to make his case before a federal judge.”
Johnson v. Williams, 568 U.S. 289, 303 (2013).
However, “When a federal claim has been presented to a
state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary. That presumption
stands unless rebutted by evidence from the state
court’s decision and the record that leads very clearly
to the conclusion that the federal claim was inadvertently
overlooked in state court.” Pittman v. Sec’y,
Fla. Dep’t of Corr., 871 F.3d 1231, 1245 (11th
Cir. 2017)(internal citations and quotations omitted),
cert. denied 139 S.Ct. 102 (2018).
The
“backward-looking language” of § 2254(d)
“requires an examination of the state-court decision at
the time it was made. It follows that the record under review
is limited to the record in existence at that same time
i.e., the record before the state court.”
Cullen v. Pinholster, 563 U.S. 170');">563 U.S. 170, 182 (2011).
Also, the “[s]tate court decisions are measured against
[the Supreme] Court’s precedents as of ‘the time
the state court renders its decision.’”
Id. (quoting Lockyer v. Andrade, 588 U.S.
63, 71-72 (2003)).
V.
EVIDENTIARY HEARING
Perkins
has asked the court for an evidentiary hearing on two of his
claims – his claim that he is ineligible for the death
penalty because he is intellectually disabled and his claim
that the prosecution used its peremptory strike in a racially
discriminatory manner. “If a claim has been adjudicated
on the merits by a state court, a federal habeas petitioner
must overcome the limitation of § 2254(d)(1) [and
(d)(2)] on the record that was before that state
court.” Cullen, 563 U.S. at 185; see
Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir.
2015)(applying Cullen to claim brought pursuant to
§ 2254(d)(2)). “Therefore, before a habeas
petitioner may be entitled to a federal evidentiary hearing
on a claim that has been adjudicated [on the merits] by the
state court, he must demonstrate a clearly established
federal-law error[, § 2254(d)(1), ] or an unreasonable
determination of fact[, § 2254(d)(2), ] on the part of
the state court, based solely on
the state court record.” Landers, 776 F.3d at
1295 (emphasis added). “Once a petitioner has
demonstrated such an error or unreasonable determination, the
decision to grant an evidentiary hearing rests in the
discretion of the district court.” Id.
(internal citations and quotations omitted).
For the
reasons set forth below, the court finds that Perkins has not
demonstrated his right to relief under § 2254(d), based
on the state court record. Therefore, his request for an
evidentiary hearing is denied.
VI.
DISCUSSION OF PERKINS’S CLAIMS
A.
THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS
CLAUSE BY FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE
AND OFFERING A FALSE STIPULATION
Perkins
alleges that the State violated Brady v.
Maryland[4] by failing to disclose a video-taped
interview of Candace Gilliam shortly after her mother’s
murder and that it violated Giglio v. United
States[5] by insisting that the stipulation as to
the content of Candace’s testimony include a false
statement that she had heard her mother cry, “Rapist,
” as she was being abducted. For the reasons set forth
herein, the court finds that Perkins is not entitled to
relief on either claim.
1.
Due Process Violation Under Brady v.
Maryland
In his
Petition, Perkins states:
29. The State violated Perkins’s right to due process
of law by suppressing a video that was favorable to the
defense and material. The video would have critically
weakened the State’s most compelling evidence of intent
to rape, strengthened the defense’s theory of the
crime, changed the character of the State’s remaining
evidence, and dampened the State’s gripping emotional
narrative. The state court’s holding that suppression
of the video did not undermine confidence in the verdict is
contrary to and involves an unreasonable application of
clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). It also is based on an unreasonable
determination of the facts in light of the evidence in the
record. See 28 U.S.C. 2254(d)(2).
. . .
30. The State prosecuted Perkins for capital murder on the
theory that he intentionally killed Cathy Gilliam in the
course of a first-degree kidnapping. [(Doc. 10, Vol. 1 at
2-3; see Ala. Code § 13A-5-40 (a)(1)
(1975)(identifying the capital offense).)] To establish a
first-degree kidnapping, the State argued that Perkins
abducted Gilliam with the intent to sexually abuse her.
[(Id., Vol. 11, Tab 16 at 1709; see Ala.
Code § 13A-6-43(a)(4) (1975)(defining first-degree
kidnapping).)] Under the relevant criminal statute, a person
could be guilty of first-degree kidnapping if he abducted
someone with the intent to sexually abuse the victim or with
the intent to physically injure the victim. Ala. Code §
13A-6-43 (a)(4) (1975). However, the prosecutor stated in
explaining his theory of the case before trial, “I
don’t think there’s any reasonable interpretation
of this case other than [Perkins] was going to take [Cathy
Gilliam] and rape her, not that he was going to physically
injur[e] her . . . .” [(Doc. 10, Vol. 11, Tab 16 at
1709.)]
31. It was undisputed that Cathy Gilliam was not raped.
[(Id., Vol. 12 at 2029; id., Vol. 13 at
2153-54.)] It also was undisputed that Perkins brought
Gilliam to a nearby home after the shooting, [(id.,
Vol. 12 at 1943)], and that Gilliam survived for at least one
hour and spoke about the crime to people around her,
[(see, e.g., id. at 1920-21,
1941-45)]. When she recounted the incident to first
responders and others, she provided a detailed description of
the man who abducted her, [(id. at 1920, 1942)],
described the man’s vehicle, [(id. at 1920,
1943)], and described how she was positioned when she was
shot, [(id. at 1920, 1930, 2028-29)], among other
things. She said that the man who shot her brought her to the
home, [(id. at 1943)], and that he said he did not
mean to shoot her, [(id. at 1944-45)]. She said that
the man had not raped her. [(Id. at 2029.)] She did
not mention an attempt to sexually assault her.
32. The issue of whether Perkins had the intent to rape was
central to the defense. Perkins conceded that he was
responsible for shooting Gilliam. [(Id., Vol. 13 at
2087; id., Vol. 16 at 2659-60.)] However, he
maintained throughout the trial that the shooting was
accidental and that he did not intend to sexually assault
her. [(Id., Vol. 16 at 2642-45, 2654-58.)] In his
opening statement to the jury, Perkins’s counsel stated
that Perkins was “not guilty of capital murder”
because “the evidence in this case will not prove that
Roy Perkins intended to hurt Mrs. Gilliam.”
[(Id., Vol. 11, Tab 18 at 1735-37.)] Counsel
emphasized this theme repeatedly; it was the backbone of the
defense. [(See, e.g., id. at 1737
(“He did not intend to hurt her, physically. And he did
not intend to rape her or sexually abuse her.”), 1740
(“[T]he evidence in this case will show that Mr.
Perkins never intended to kill Mrs. Gilliam [and] that he
never intended to physically harm her or sexually abuse
her.”); id., Vol. 15, Tab 22 at 2632-38
(arguing State failed to prove intent to rape); id.,
Vol. 16 at 2641-45 (arguing State’s evidence consistent
with defense theory of no intent to rape), 2650-51
(explaining difference between first and second degree
kidnapping and arguing that Perkins did not intend to
sexually abuse victim), 2652-56 (arguing State’s
circumstantial evidence insufficient to convict Perkins of
capital murder because it failed to establish intent to
sexually abuse), 2657 (arguing that if attempted rape had
occurred, victim would have mentioned it when she gave
details of crime to police), 2657-58 (arguing Perkins went to
victim’s home because he was running from police), 2658
(“So there was never any intent to physically injure or
sexually abuse.”).
33. At trial, the State presented evidence of what Cathy
Gilliam said at the moment of the abduction from its first
witness, Gilliam’s fourteen-year-old daughter, Candace
Gilliam. [(Id., Vol. 11, Tab 19 at 1742.)] Candace
Gilliam testified that she was present when her mother was
abducted. [(Id. at 1742-46.)] She was the only
eyewitness to that event. After she became emotional on the
stand, . . . there was a brief recess and defense counsel
offered to “stipulate to what she said she saw, ”
[(id., Vol. 11, Tab 19 at 1748)]. The State
represented that Candace Gilliam would testify that she heard
Cathy Gilliam “yell for her help and something about a
rapist.” [(Id. at 1755.)] The defense agreed
to the stipulation based on the State’s account of
Candace Gilliam’s statement.[6] The defense had no reason to
doubt the State’s representations; the district
attorney followed an open file policy, [(id., Vol. 1
at 86; id., Vol. 4 at 245)], and his “open
file” did not contain any statement of Candace Gilliam
that contradicted the State’s version of what her
testimony would be, [(see id., Vol. 63 at 195-96;
id., Vol. 64 at 420)].
34. After the stipulation was entered, the State used the
“cry of rapist, ” [(id., Vol. 11, Tab 17
at 1734)], to argue that Perkins intended to sexually assault
Cathy Gilliam, [(see, e.g., id.,
Vol. 15, Tab 21 at 2616, 2622; id, Vol. 16, Tab 23
at 2669-70; see also id., Vol. 11, Tab 17 at 1716)].
Defense counsel attempted to curb the prosecution’s use
of the stipulated testimony in closing argument:
MR. FREEMAN [District Attorney]: [. . .] [Candace Gilliam]
hears her mother saying the word, rapist . . . . [D]id he say
something to [Cathy Gilliam]? She used the word,
rapist.[7]
MR. STEVERSON [Defense Attorney]: Judge, at this time,
we’re going to object to that continuous – I
think the testimony that they brought out was that they heard
somebody say it. But I don’t think there’s any
testimony that [Mr. Freeman knows] who said it. I think
that’s a misstatement – to say that Mrs. Gilliam
– MR. FREEMAN: No, sir. Miss Candace Gilliam testified
that she heard her mother say the word, rapist.
MR. LEMLEY [Asst. District Attorney]: Your Honor, the
stipulation that I have right here in front of me, Candace
heard her mother yell for help and something about rapist.
MR. STEVERSON: Right. That’s exactly right.
MR. LEMLEY: She heard her mother yell for help and something
about rapist.
THE COURT: Okay. Well [the prosecutor] can draw his
inferences. Go ahead now.
[(Id., Vol. 16, Tab 23 at 2669-70.)]
35. The State’s most direct evidence that Perkins
intended to rape Gilliam was the stipulation that she
“used the word, rapist.” This statement was
unconditionally admitted. The State’s remaining
evidence of intent consisted of collateral-act evidence. The
main collateral-act evidence alleged that Perkins had raped
two women in the weeks before this incident. [(See
id., Vol. 12 at 1862-912.)] Other collateral-act
evidence involved the testimony of Darlene Hall, who said
that Perkins drove up to her house and acted suspiciously
shortly before the abduction of Cathy Gilliam. Hall’s
testimony did not support the State’s argument that
Perkins intended to rape Cathy Gilliam. Hall herself
acknowledged that the man she identified as Perkins did not
threaten or attempt to harm her when they encountered each
other on Hall’s front porch. [(Id., Vol. 11,
Tab 19 at 1778-79.)] In fact, she went inside to make a
telephone call for him. [(Id. at 1775-76.)]
36. Without evidence that Cathy Gilliam cried “rapist,
” the State’s case for capital murder was weak.
There was little about the abduction of Gilliam to indicate a
rape motive. Without the cry of “rapist, ” the
State would have had no substantial evidence to connect the
collateral acts to the Gilliam abduction.
37. On its own, the collateral-act evidence was consistent
with the defense’s theory. Defense counsel pointed out
that, at the time of Cathy Gilliam’s abduction,
warrants had been issued, Perkins’s photograph was in
the local papers, and Perkins was “on the run, he
kn[ew] the police [were] coming after him.”
[(Id., Vol. 16 at 2654.)] There was no evidence that
Perkins was wanted when the collateral rapes occurred, which
made the circumstances of Cathy Gilliam’s abduction
materially different. The collateral rapes provided an
explanation for why Perkins approached Darlene Hall and
abducted Cathy Gilliam: he was running from the police.
[(See, e.g., id. at 2642-45,
2654-55.)] The collateral-act evidence was emotionally
charged and inflammatory, but it supported the
defense’s theory that Perkins did not intend to kill,
injure, or sexually abuse Gilliam, which would have been
sufficient to avoid a capital murder conviction.
38. Unlike the collateral-act evidence, “Cathy’s
cry of rapist, ” [(id., Vol. 11, Tab 17 at
1734)], could not be reconciled with the defense’s
theory; it radically undercut it. The State used the
“cry of rapist” to show that Perkins’s
intent was the same as it had been during the collateral
crimes. [Id., Vol.15, Tab 21 at 2616; see
id., Vol. 16, Tab 23 at 2669-70.)] The State had no
other evidence that clearly connected the collateral rapes to
the abduction of Gilliam.
39. Perkins was found guilty of capital murder and sentenced
to death. [(Id., Vol. 2 at 288-89; id., Tab
3 at 354.)] His conviction and sentence were affirmed on
direct appeal. Perkins v. State, 808 So.2d 1041
(Ala.Crim.App.1999), aff’d sub nom. Ex parte
Perkins, 808 So.2d 1143 (Ala. 2001), vacated sub
nom. Perkins v. Alabama, 536 U.S. 953 (2002),
remanded sub nom. to Ex parte Perkins, 851 So.2d 453
(Ala. 2002).
40. In Rule 32 proceedings, Perkins discovered that –
despite the State’s open-file policy and its
representation at trial that Candace Gilliam heard her
mother’s “cry of rapist” – the State
possessed a videotaped interview in which Candace Gilliam
stated that she did not know what, if anything, her mother
said when she was abducted. P.C. 5298 at 05:37-05:55. In the
interview, which was conducted thirteen days after the
offense, a victims’ services officer repeatedly asked
Candace Gilliam if she heard her mother say anything at the
time of the abduction. Candace Gilliam repeatedly answered,
“No.” When the officer continued to press her,
Candace Gilliam explicitly stated that she could not make out
any of her mother’s words. [(Id.)] It is
undisputed that the State concealed that video from the
defense. [(Id., Vol. 56, Tab 135 at 4489.)]
41. In his Rule 32 petition, Perkins argued that the
State’s suppression of the video violated Brady v.
Maryland, 373 U.S. 83 (1963). [(Id., Vol. 50,
Tab 126 at 3391-97.)] Brady held that a prosecutor
violates the Due Process Clause when the following three
elements are met: (1) the prosecution suppresses evidence,
(2) the suppressed evidence is favorable to the defense, and
(3) the suppressed evidence is material to guilt or
punishment. Brady, 373 U.S. at 87. Additionally, the
State’s knowing false representation about Candace
Gilliam’s testimony constituted a due process violation
under Napue v. Illinois, 360 U.S. 264 (1959), and
Giglio v. United States, 405 U.S. 150 (1972).
42. At the Rule 32 evidentiary hearing, Perkins’s trial
counsel testified that if they had known about the video,
they would not have agreed to the stipulation concerning
Candace Gilliam’s testimony. [(See doc. 10,
Vol. 63 at 195-96; id., Vol. 64 at 420.)] Thus, had
the video been disclosed, “Cathy’s cry of
rapist” either would not have been presented, or it
would have been undercut on cross-examination. Had
cross-examination occurred, the jury would have learned that
the suppressed video captured Candace Gilliam’s account
less than two weeks after the incident and included an
extensive examination of exactly what she saw and heard. She
provided specific details about the location of her
mother’s car, P.C. 5298 at 06:45-07:50, relative
positions of objects, [(id.)], and the alleged
weapon, [(id. at 05:05-05:35)]. And she said
repeatedly that she did not hear what, if anything, her
mother said.
43. The Rule 32 circuit court found that the State suppressed
the video. [(Doc. 10, Vol. 56, Tab 63 at 4488-89.)] The court
also found that the video “was favorable impeachment
evidence.” [(Id. at 4490.)] The court held
that the video was not material, however, because it would
not have “changed the outcome of the case.”
[(Id.)] The circuit court denied relief.
[(Id.)]
(Doc. 1 ¶¶ 29-43 [footnotes added].)
Perkins
appealed the Rule 32 court’s decision and the Alabama
Court of Criminal Appeals affirmed the circuit court’s
decision; it held:
Not only did Perkins fail to satisfy the requirements for
establishing a Brady violation, Perkins also failed
to satisfy the requirements for showing that this claim was
based on newly discovered evidence.[8] Perkins did show that the
State failed to disclose Candace’s statement and that
the statement would have been relevant for impeachment.
However, contrary to Perkins’s assertions, the
stipulated testimony was not the only evidence that tended to
establish Perkins’s intent. Two witnesses testified
that in the two weeks before the kidnapping and murder of
Gilliam, Perkins had raped them. B.P. testified that she knew
Perkins and that he had asked her to go with him to return a
car to a friend. She said that after they had been driving
for several minutes Perkins turned down a dirt road, put a
knife to her throat, and raped her. D.W. testified that, as
she was getting out of her vehicle at her grandmother’s
house, Perkins came up behind her and put a knife to her
throat. She said that he drove her to an abandoned building
and raped her. Darlene Hall also testified that minutes
before Gilliam was abducted, Perkins came to her house,
knocked on her door, asked if her husband was at home, and
asked to use her telephone to call a tow truck because, he
said, his car was stuck in a field. Hall said that she did
not open the door and that Perkins left. On direct appeal,
this Court held that the collateral acts were admissible to
show Perkins’s intent. Perkins, 808 So.2d at
1084.
Perkins failed to establish that there is a reasonable
probability that, had Candace’s pretrial statement been
disclosed, the outcome of the trial would have been
different. Williams, 710 So.2d at 1296-97.
Therefore, this Court agrees with the circuit court that
Perkins failed to meet his burden of proving a Brady
violation.
Perkins, 144 So.3d at 468-69 (footnote added).
In his
Petition, Perkins argues, “The state court’s
ruling that the suppressed video was not material was
contrary to and involved an unreasonable application of
clearly established federal law, see 28 U.S.C.
§ 2254(d)(1), and was based on an unreasonable
determination of the facts in light of the evidence in the
record, see 28 U.S.C. § 2254(d)(2).”
(Doc. 1 ¶ 45.)
Under
clearly-established Supreme Court precedent, “[t]here
are three components of a true Brady violation: [1]
The evidence at issue must be favorable to the accused,
either because it is exculpatory or because it is impeaching;
[2] that evidence must have been suppressed by the State,
either willfully or inadvertently; and [3] prejudice must
have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999). “Such evidence is material
‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.’”
Id. at 280 (quoting United States v.
Bagley, 473 U.S. 667, 676 (1985); citing Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995)).
“Consequently, the issue before [the court] . . . is
legally simple but factually complex. [The court] must
examine the trial record, evaluate the withheld evidence in
the context of the entire record, and determine in light of
that examination whether there is a reasonable probability
that, had the evidence been disclosed, the result of the
proceeding would have been different.” Turner v.
United States, 137 S.Ct. 1885, 1893 (2017). “The
question is not whether the defendant would more likely than
not have received a different verdict with the [withheld]
evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence.” Kyles, 514 U.S. at 434. “In
other words, favorable evidence is subject to
constitutionally mandated disclosure when it ‘could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the
verdict.’” Cone v. Bell, 556 U.S. 449,
470 (2009)(quoting Kyles, 514 U.S. at 435 and citing
Banks v. Dretke, 540 U.S. 668, 698-99 (2004) and
Strickler, 527 U.S. at 290). “[U]ndisclosed
evidence can require a new trial even if it is more likely
than not that a jury seeing the new evidence would still
convict.” Hays v. State of Ala., 85 F.3d 1492,
1498 (11th Cir. 1996).
However,
withheld evidence is not material if, when considered in the
context of the entire record, “it is too little, too
weak, or too distant from the main evidentiary points”
of the case. See Turner, 137 S.Ct. at 1894.
Perkins
argues:
Under [the] circumstances, “[d]isclosure [of the
interview of Candace] would have resulted in a markedly
weaker case for the prosecution and a markedly stronger one
for the defense.” Kyles, 514 U.S. at 441. A
video that undercuts a prosecutor’s most direct,
proximate evidence of intent is material to guilt and should
be disclosed, particularly in a capital case. Disclosure
would have severed the link between the collateral acts and
the Gilliam abduction, putting the whole case in a different
light. And it would have created a reasonable probability of
a different result by allowing the jury to fairly consider
the defense’s theory based on all of the available
information. The state court’s contrary conclusion,
which rests solely on a finding of other admissible evidence
to support intent, is objectively unreasonable.
(Doc. 1 ¶ 55 [footnote omitted].) The court
disagrees.[9]
Perkins’s
defense to the capital charge was that he did not abduct Mrs.
Gilliam with the intent to rape her or otherwise to
physically harm her and that he did not intend to kill her
when he shot her. Therefore, he was not guilty of kidnapping
in the first degree and not guilty of capital murder,
although he may have been guilty of a lesser-included offense
such as felony murder. The State argued that Perkins abducted
Mrs. Gilliam with the intent to rape or sexually assault her.
In addition to Candace’s statement that she saw her
mother being abducted at gunpoint and heard her mother say
“something about rapist, ” the State based its
case on two rapes perpetrated by Perkins in the two weeks
prior to his kidnaping Mrs. Gilliam; the fact that he had a
gun and a knife; the forensic evidence from the truck showing
several bullet holes; and the autopsy report.
Considering
the entire record, the court finds that the Alabama
court’s determination – that the withheld video
of Candace’s interview, in which she said she did not
hear what her mother said, is not material and the failure to
disclose it did not prejudice Perkins’s defense –
is not unreasonable. The evidence presented at trial showed
that Perkins had raped two women in the days prior to his
kidnapping of Mrs. Gilliam. He had a gun and a knife when he
took Mrs. Gilliam from her home. However, he did not rape
Mrs. Gilliam and, after he shot Mrs. Gilliam, he let her go
near Maudeen Hood’s house. When she got to Ms.
Hood’s house, Mrs. Gilliam was able to speak; she told
Ms. Hood and first responders that she had not been raped and
that Perkins had told her that he did not mean to shoot her.
Other
evidence showed that there was a struggle for the gun during
which Perkins was shot in the leg and Mrs. Gilliam was shot
in the chest. The truck also had gunshot holes in the
windshield and the roof of the cab proving multiple gunshots
were fired within the cab of the truck. Mrs. Gilliam died
from a gunshot wound to the chest that destroyed her liver.
No. gunpowder residue was found around her wound or on her
clothing indicating that she was shot from a distance of
about 18 inches. Moreover, there was no hole in her shirt
from the gunshot proving that her shirt was not covering her
chest at the time she was shot, which may indicate that
Perkins was taking her clothes off at the time he shot her.
She also had wounds to her neck that appeared to be knife
wounds.
In
light of these facts whether Candace heard Mrs. Gilliam
called out “rapist” or whether, as Candace stated
in her first interview, she did not hear what her mother
said, does not appear to be material. Mrs. Gilliam was taken
from her home at gun point by Perkins, who had raped two
women in as many weeks. Perkins shot Mrs. Gilliam in an
apparent struggle for the gun and at the time of the shooting
Mrs. Gilliam’s shirt was raised, exposing her abdomen.
There is no question that the State failed to disclose
relevant impeachment evidence that it had a duty to disclose.
The court finds some possibility that, had Candace testified
that she did not hear what her mother said, the jury may have
credited the defense’s position that Perkins did not
kidnap Mrs. Gilliam with the intent to rape her or to
otherwise cause her physical harm.
However,
“As a condition for obtaining habeas corpus from a
federal court, [Perkins] must show that the state
court’s ruling on [his Brady] claim . . . was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond
any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S.
at 103 (emphasis added). “Phrased more simply and maybe
a little more clearly: if some fairminded jurists could agree
with the state court’s decision, although others might
disagree, federal habeas relief must be denied.”
Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir.
2011)(quoting Loggins v. Thomas, 654 F.3d 1204, 1220
(11th Cir. 2011))(internal quotations omitted).
Considering
the evidence at trial in light of Candace’s prior
statement, the court cannot say that no fair-minded jurist
could agree with the Alabama court’s decision that
“Perkins [had] failed to establish that there [was] a
reasonable probability that, had Candace’s pretrial
statement been disclosed, the outcome of the trial would have
been different.” Perkins, 144 So.3d at 469.
Although some fair-minded jurists might disagree, trial
evidence of the two sexual assaults occurring days before his
abduction of Mrs. Gilliam and of Perkins’s abduction of
Mrs. Gilliam at gunpoint – even assuming Mrs. Gilliam
did not say anything about a rapist – is strong
evidence that Perkins abducted Mrs. Gilliam with the intent
to sexually assault her. Therefore, the Alabama court’s
decision that Perkins did not establish a Brady
violation is entitled to deference.
Based
on the foregoing, the court finds that Perkins is not
entitled to any relief based on his claim that he was denied
due process by the prosecution’s failure to disclose
the tape of Candace’s initial interview.
CONCLUSION
The
state court’s factual findings are supported by the
record and must be given deference by this court. Perkins has
failed to demonstrate that the state court’s rejection
of this claim relied on erroneous facts, or applied law
contrary to established United States Supreme Court precedent
or in a manner that was objectively unreasonable in light of
such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals
unreasonably applied, or reached a decision contrary to,
clearly established federal law. Therefore, Perkins is not
entitled to habeas relief on this ground.
2.
Due Process Violation under Napue v. Illinois and
Giglio v. United States
Perkins
alleges that “the State’s knowing false
representation about Candace Gilliam’s testimony
constituted a due process violation under Napue v.
Illinois, 360 U.S. 264 (1959), and Giglio v. United
States, 405 U.S. 150 (1972).” (Doc. 1 ¶ 41.)
He
argues:
A truthful stipulation would have stated that Candace Gilliam
might testify that she did not hear
her mother say any words, as she told the police in the
videotaped interview. The stipulation offered by the
prosecution did not have that qualification. Therefore, the
stipulation was false, the jury was given a materially untrue
depiction of Candace Gilliam’s credibility, and Perkins
was denied a reliable determination of guilt.
(Doc. 1 ¶ 60 [emphasis added].) He contends that the
Alabama court’s decision “adjudicated the claim
on the merits and denied relief . . . [w]ithout reaching the
question of whether the false testimony was material . . .
because Perkins had not called Candace Gilliam to testify at
the Rule 32 hearing.” (Id. ¶ 62.)
Therefore, he contends that the state court’s decision
is not entitled to any deference because –
64. Clearly established federal law holds “that the
Fourteenth Amendment cannot tolerate a state criminal
conviction obtained by the knowing use of false
evidence.” Miller v. Pate, 386 U.S. 1, 7
(1967). The rule against using false evidence applies not
only to falsification of the substance of a witness’s
testimony, but also to false representations about a
witness’s credibility. Giglio, 405 U.S. at
154.
65. To determine whether a prosecutor knew that evidence was
false, clearly established federal law holds that a court
must determine whether “the prosecution knew, or should
have known, ” that the evidence was false.
Agurs, 427 U.S. at 103. Knowledge of the
prosecutor’s “superiors” and
“associates” is attributed to the prosecutor
regardless of actual knowledge. See, e.g.,
Giglio, 405 U.S. at 154. And knowledge of falsity
may be inferred from the record. See, e.g.,
Miller v. Pate, 386 U.S. at 6.
66. The state court decision is contrary to clearly
established federal law under 28 U.S.C. § 2254(d)(1).
The test that applies to this sort of claim asks whether the
“prosecution deliberately misrepresented the
truth.” Miller v. Pate, 386 U.S. at 6. Instead
of addressing that issue, the state court addressed the
separate issue of what Candace Gilliam would say if called as
a witness. Perkins, [144 So.3d at 470]
(“Candace did not testify.”). However, Candace
Gilliam’s testimony would not undo the
prosecutor’s misrepresentation as to Candace
Gilliam’s account. Because the state court chose to
focus on what the witness did not say at the Rule 32 hearing
instead of addressing what the prosecutor actually did at
trial, its decision is contrary to clearly established
federal law under 28 U.S.C. § 2254(d)(1). See Lafler
v. Cooper, 132 S.Ct. 1376, 1390 (2012) (holding state
court decision contrary to federal law where state court
resolved claim by addressing wrong issue).
67. Similarly, the state court decision involved an
unreasonable application of clearly established federal law
under 28 U.S.C. §2254(d)(1) by failing to consider all
of the facts in support of this claim. The state
court’s analysis consisted of an observation that
“[i]nconsistent statements by a witness do not, by
themselves, establish that one statement is false and the
other is true.” Perkins, [144 So.3d at 470].
The state court unreasonably ignored that the misconduct here
was not based on the witness’s two statements, but on a
stipulation that the prosecutor represented falsely as the
witness’s only statement. [(Doc. 10, Vol. 11, Tab 19 at
1748.)] The state court’s decision involved an
objectively unreasonable application of clearly established
federal law under 28 U.S.C. § 2254(d)(1) because the
court failed to recognize the significance of the stipulation
and the circumstances surrounding it. See Rompilla v.
Beard, 545 U.S. 374, 389-90 (2005)(holding “the
state courts were objectively unreasonable” in denying
claim where totality of circumstances supported relief).
68. The state court decision is also based on an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(2).
The evidence in the record established that the prosecutor
misrepresented Candace Gilliam’s account of what she
witnessed. The state court’s failure to consider that
evidence and make that finding, in addition to being an
unreasonable application of law, constitutes an unreasonable
determination of the facts. See Adkins, 710 F.3d at
1254 (“Because the court overlooked material facts in
its factfinding, it . . . unreasonably determined the facts .
. . .”).
69. The state court did not address whether the false
evidence was material. See Perkins, [144 So.3d at
469-70]. Therefore, this issue was not adjudicated on the
merits by the state court and should be reviewed de novo by
this Court. See 28 U.S.C. § 2254(d); see
also Wiggins v. Smith, 539 U.S. 510, 534
(2003)(“[O]ur review is not circumscribed by a state
court conclusion with respect to [one part of a two-part
test], as neither of the state courts below reached this
prong of [test].”).
(Id. ¶¶ 64-69.)
The
Court of Criminal Appeals rejected Perkins’s claim on
appeal; it held:
Perkins next argues that the State violated his
constitutional right to due process by knowingly using false
testimony by informing the defense that Candace would testify
that her mother yelled something about a rapist as she was
being forced from the house. According to Perkins, the
State’s representation was false because a pretrial
statement by Candace indicated that she did not know what her
mother yelled.
. . .
To prove a Giglio v. United States, 405 U.S. 150, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972), violation, the petitioner
must show that: (1) the State used the testimony; (2) the
testimony was false; (3) the State knew the testimony was
false; and (4) the testimony was material to the guilt or
innocence of the accused. Williams v. Griswald, 743
F.2d [1533, ] 1542 [(11th Cir. 1984)]. “[T]he defendant
must show that the statement in question was
‘indisputably false, ’ rather than merely
misleading.” Byrd v. Collins, 209 F.3d 486,
517 (6th Cir. 2000) (quoting United States v.
Lochmondy, 890 F.2d 817, 823 (6th Cir. 1989)).
“The burden is on the defendants to show that the
testimony was actually perjured, and mere inconsistencies in
testimony by government witnesses do not establish knowing
use of false testimony.” Lochmondy, 890 F.2d
at 822. “[I]t is not enough that the testimony is
challenged by another witness or is inconsistent with prior
statements, and not every contradiction in fact or argument
is material.” United States v. Payne, 940 F.2d
286, 291 (8th Cir. 1991)(citing United States v.
Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980)).
“[T]he fact that a witness contradicts himself or
herself or changes his or her story does not establish
perjury.” Malcum v. Burt, 276 F.Supp.2d 664,
684 (E.D. Mich. 2003)(citing Monroe v. Smith, 197
F.Supp.2d 753, 762 (E.D. Mich. 2001)).
At the postconviction evidentiary hearing, Candace did not
testify. No. evidence was presented that the stipulated
testimony was, in fact, false. Inconsistent statements by a
witness do not, by themselves, establish that one statement
is false and the other is true. See United States v.
Payne, supra. Accordingly, Perkins failed to meet his
burden of proving a Giglio violation, and the
circuit court correctly denied relief on this claim.
Perkins, 144 So.3d at 469-70.
Supreme
Court law “has long been established that the
prosecution’s ‘deliberate deception of a court
and jurors by the presentation of known
false evidence is
incompatible with rudimentary demands of
justice.’” Banks, 540 U.S. at 694
(quoting Giglio, 405 U.S. at 153 (quoting Mooney
v. Holohan, 294 U.S. 103, 112 (1935)))(emphasis added).
Nothing in any Supreme Court case implies that a habeas
petitioner can state a claim based on the prosecutor’s
knowing presentation of false testimony or failure to correct
testimony he knows to be false without showing that the
testimony is actually false; or that a prosecutor has
deliberately presented known false evidence when he
represents the substance of a witness’s statement
without equivocation, even though the witness has given
inconsistent statements over the course of an investigation.
Other than proof of the undisclosed interview, Perkins failed
to show that the prosecutors knew
the stipulation – Candace heard her mother cry
“rapist” – was false.
The law
is well established that:
[A] prior statement that is merely
inconsistent with a government witness’s
testimony is insufficient to
establish prosecutorial misconduct. United States v.
Michael, 17 F.3d 1383, 1385 (11th Cir. 1994)(“We
refuse to impute knowledge of falsity to the prosecutor where
a key government witness’[s] testimony is in conflict
with another’s statement or testimony.”);
Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir. 1996)
(determining there was no due process violation where
“there has been no showing that [the witness’s]
later, rather than earlier, testimony was false”);
United States v. Gibbs, 662 F.2d 728, 730 (11th Cir.
1981) (“Though knowing prosecutorial use of false
evidence or perjured testimony violates due process . . . it
is not enough that the testimony . . . is inconsistent with
prior statements.”); United States v. Brown,
634 F.2d 819, 827 (5th Cir. Jan. 1981)(“[D]ue process
is not implicated by the prosecution’s introduction or
allowance of false or perjured testimony unless the
prosecution actually knows or believes the testimony to be
false or perjured; it is not enough that the testimony is
challenged by another witness or is inconsistent with prior
statements.”).
United States v. McNair, 605 F.3d 1152, 1208-09
(11th Cir. 2010)(emphasis added). In dicta the Supreme Court
has held, “A mere claim that a witness gave
inconsistent testimony is not enough to charge the
prosecution’s knowing use of false testimony;
it may well be that the witness’[s]
subsequent statements were true, in which event the claim of
inconsistency is not a constitutional
objection.” Price v. Johnston,
334 U.S. 266, 288 (1948)(citing Mooney). Although
some fair-minded jurists might disagree, the Alabama
court’s decision – that Perkins failed to prove a
Giglio violation because he did not prove that the
stipulated testimony was, in fact, false, as opposed to
merely inconsistent with Candace’s pretrial interview
– was not contrary to or an unreasonable application of
clearly established law or an unreasonable determination of
the facts.
Based
on the foregoing, the court finds that Perkins is not
entitled to any relief based on his claim that he was denied
due process by the prosecution’s presentation of false
testimony or failure to correct false testimony.
CONCLUSION
The
state court’s factual findings are supported by the
record and must be given deference by this court. Perkins has
failed to demonstrate that the state court’s rejection
of this claim relied on erroneous facts, or applied law
contrary to established United States Supreme Court precedent
or in a manner that was objectively unreasonable in light of
such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals
unreasonably applied, or reached a decision contrary to,
clearly established federal law. Therefore, Perkins is not
entitled to habeas relief on this ground.
B.
THE STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO
COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR
PRETRIAL PREPARATIONS
Perkins
claims, “The state trial court violated [his] right to
counsel by removing his lawyers, who had represented [him]
for a year and were willing to continue representing him,
where there was no serious potential for a conflict of
interest or any other harm, and removal served no legitimate
state interest.” (Doc. 1 ¶ 72.) He alleges:
73. Roy Perkins was arrested on August 12, 1990, and charged
with capital murder. [(Doc. 10, Vol. 1 at 2-3, 134.)] The
trial court formally appointed the Tuscaloosa County Public
Defender’s Office [hereinafter PDO] to represent him 19
months later. [(Id. at 7 [March 10, 1992].)] Ricky
McKinney and George Taylor became Perkins’s counsel and
represented him for the next year. [(See,
e.g., id. at 7-14, 17-39, 47-58;
id., Vol 2, Tab 2 at 290-92; id., Vol. 3 at
25-27; id., Vol. 19, Tab 41 at 25-32.)]
74. By late-October 1992, Perkins’s counsel had
undertaken substantial preparation of a defense. Counsel had
requested a mental-health evaluation. [(Id., Vol. 1
at 18 [July 31, 1992].)] They had begun seeking expert
assistance and filed a motion to proceed ex parte on requests
for funds in order to protect “the independence of the
defense” and avoid disclosure of trial strategy.
[(Id. at 20-39.)] They moved for permission to allow
Perkins to participate in his defense as co-counsel.
[(Id. at 47, ¶ 4 [Oct. 7, 1992].)] They had
begun compiling evidence in support of a motion for change of
venue. [(Id., Vol. 4 at 226.)] Most importantly,
they understood the evidence and issues likely to arise at
both the guilt and penalty phases, as reflected in a
discovery motion that asked for disclosure of statements or
recordings of specific witnesses. [(Id., Vol. 1 at
52-54 (Oct. 7, 1992).)] Counsel also sought information about
the physical evidence and tests performed by the Alabama
Department of Forensic Sciences, [(id. at 54-55)],
information about Perkins’s mental state and life
history, [(id. at 55-57)], and information relevant
to the existence of aggravating or mitigating circumstances,
[(id. at 54)], among other things.
75. Approximately a year after Perkins’s counsel began
preparing a defense, the prosecution filed a motion to
disqualify the [PDO] from representing Perkins.
[(Id. at 63-64 (February 16, 1993).)] The motion
alleged that a former police detective named Shirley Fields
had left the Tuscaloosa Police Department and accepted new
employment as an investigator for the [PDO]. [(Id.
at 63.)] This was a problem, according to the motion, because
Fields was “deeply” involved in Perkins’s
prosecution, held confidential information, and would be
“consulted extensively” during the
prosecution’s trial preparations. [(Id. at
64.)]
76. The prosecution’s motion was heard the following
month. Shirley Fields testified at the hearing. He said that
he was not deeply involved in the prosecution, or even
actively involved in it. [(Id., Vol. 2, Tab 5 at
14.)] According to Fields, “My only involvement in Mr.
Perkins’[s] case was that I was present when
Investigator Simpson processed a truck at the homicide
office, ” [(id. at 12)], and “Simpson
actually did all of the processing, ” id.
Fields testified that he had not questioned any of the
witnesses in the case, that he had no independent
recollection of any conversations that he had with any of the
investigators or prosecutors assigned to the case, and that
he had no active role in supervising any of the officers
assigned to the case apart from “the process of
processing the vehicle.” [(Id. at 13.)] With
regard to the prosecution’s anticipated need for
extensive consultations with Fields, Fields disavowed
participation in trial strategy, [(id. at 14)], and
could not recall a single conversation “with anyone
from the District Attorney’s Office regarding this
particular case, ” [(id. at 13)].
77. Perkins wanted the public defender’s office to
represent him, [(id., Vol. 3 at 27)], the public
defender’s office was willing to represent Perkins,
[(id. at 28)], and Perkins opposed the
prosecution’s motion, [(id. at 24-26)]. Based
on the evidence presented at the hearing, Perkins’s
counsel argued that Fields was not substantially
participating in the case, did not participate in the
investigation beyond being present and perhaps discussing
with Officer Simpson while Officer Simpson performed the
processing of the vehicle. He did not participate in the
interview of any witnesses. He did not participate in the
interview of the defendant. His . . . actual supervision in
this particular case is virtually nonexistent . . . . We
don’t feel under the circumstances that he did
substantially participate in the investigation of Mr.
Perkins’[s] case and that under those circumstances,
there is not an actual conflict . . . .
[(Id. at 26.)] Counsel represented that Perkins
waived any potential conflict related to the possibility that
Fields might be called as a witness at trial and
cross-examined by a co-worker, although it was
“difficult to envision” that occurring.
[(Id.)] [Footnote] Counsel added, “We feel
like under the circumstances, he has developed a relationship
with his attorney, Mr. McKinney, a trust in Mr. McKinney and
a confidence in that representation which would be materially
damaged if he was required to change counsel at this
time.” [(Id. at 27.)]
[Footnote:] As expected, Fields did not testify at
Perkins’s trial.
78. The trial court granted the prosecution’s motion
and disqualified the [PDO]. [(Id., Vol. 1 at 65
(March 19, 1993).)] Several weeks later, the public
defender’s office filed an unopposed motion for
reconsideration and factfinding. [(Id. at 70.)] The
trial court granted the motion and entered a new order
stating that there was “no evidence” of a
conflict of interest under the ethics rules, but that the
[PDO] was disqualified in order to avoid the
“appearance of impropriety.” [(Id. at 71
(April 19, 1993).)]
79. In the months that followed, the trial court appointed
former Tuscaloosa County District Attorney’s Office
prosecutors Dennis Steverson and James Smith to represent
Perkins. [(Id., Vol. 2, Tab 2 at 292-93.)] They met
with Perkins for the first time in August 1993.
[(Id. at 293; id., Vol. 1 at 74.)]
(Doc. 1 ¶¶ 73-79 and n.8 [footnote 7 omitted].)
On
direct appeal, the Alabama Court of Criminal Appeals found:
In February 1993, over a year before Perkins’s trial,
the State filed a motion to disqualify the public
defender’s office from representing Perkins based on a
potential conflict of interest. The State argued that the
hiring of Shirley Fields – a former captain in the
Tuscaloosa homicide unit and second in command of that unit
during its investigation of Mrs. Gilliam’s murder
– as an investigator with the public defender’s
office, created a potential conflict of interest because
Fields had been involved in the murder investigation in a
supervisory capacity, was privy to confidential government
information concerning the case that was not subject to
disclosure, and was a possible witness for the State at
Perkins’s trial. At a hearing on the motion in March
1993, Fields testified that he played a supervisory role in
the investigation of Mrs. Gilliam’s death, that he was
privy to sensitive information about the investigation, that
he participated in the processing of one of the State’s
most important pieces of evidence (the gray pickup truck),
but that he had not been actively involved in every aspect of
the investigation. In addition, he stated that, in the past,
the district attorney’s office had often consulted him
about trial strategy in cases in which he had played a
supervisory role. Following Fields’s testimony, the
public defender representing Perkins argued against the
motion, stating that although there was a potential conflict
if the State ultimately called Fields to testify, Perkins was
willing to waive that potential conflict. After the hearing,
the trial court entered a written order granting the
State’s motion to disqualify the public
defender’s office, stating, in pertinent part:
“This Court finds no evidence of a violation of Rule of
Professional Responsibility 1.11. However, the nature of this
case and the scrutiny to which it would be subjected upon
possible appellate review, warrants this Court to act with
extreme caution to avoid any appearance of impropriety or
appearance of a conflict of interest. The Court noted this
exercise of caution is to protect both the rights of the
State and the defendant. The Court further finds that
substitution of counsel at this stage of the proceedings
produces no injury to Mr. Perkins’s defense.”
[(Doc. 10, Vol. 1 at 71-72.)]
Perkins, 808 So.2d at 1059-60. The Court of Criminal
Appeals held:
Fields’s testimony at the hearing on the State’s
motion to recuse revealed that he was involved in the
investigation of Mrs. Gilliam’s murder in a supervisory
capacity and that he was privy to sensitive information
concerning the case. In addition, Fields was a potential
witness for the State based on his involvement in the
processing of the gray pickup truck. This created not only an
“appearance of impropriety, ” as the trial court
stated, but a real potential for conflict. Contrary to
Perkins’s contention, merely because this potential
conflict did not burgeon into an actual conflict of interest
(Fields was, in fact, not called as a witness for the State),
does not lessen the duty of the trial court to exercise
caution, especially in a case where the most severe of all
penalties might be imposed.
Id. at 1060. The court found “a clear
potential for conflict in this case, ” for the PDO and
the State based on “Fields’s employment with the
office representing Perkins, after his involvement in the
investigation of Mrs. Gilliam’s death, combined with
the possibility that he may have been called as a witness for
the State at Perkins’s trial.” Id. at
1061. Therefore, it found “no abuse of discretion on
the part of the trial court in exercising its own scrutiny to
ensure a fair trial to both sides in a case” by
disqualifying the [PDO], id. and “no abuse of
discretion in the trial court’s rejection of
Perkins’s offer to waive the potential conflict,
” id.
Perkins
contends that “[t]he state court’s decision
[affirming the trial court’s disqualification of the
PDO] is contrary to or involves an unreasonable application
of clearly established federal law, 28 U.S.C. §
2254(d)(1), and is based on an unreasonable determination of
the facts in light of the evidence in the record, 28 U.S.C.
§ 2254(d)(2).” (Doc. 1 ¶ 81.) Specifically he
contends that the decision of the Court of Criminal Appeals,
which was based on a finding of a
clear potential for conflict rather
than a serious potential for
conflict, is contrary to Supreme Court precedent. (Doc. 1
¶¶ 84-85 [citing, inter alia,
Wheat, 486 U.S. at 162-64](emphasis added).) He
contends that the Alabama court’s decision represents
an unreasonable application of Supreme Court precedent
because the risk that the public defender “would have
been prevented from doing anything if Fields had been called
to testify for the State, ” which Perkins describes as
the “touchstone of a conflict, ” is nonexistent.
(Id. ¶ 86 [citing, inter alia, Holloway v.
Arkansas, 435 U.S. 475, 489-90 (1978)].) And, Perkins
contends, the Alabama court’s decision, that a
potential conflict of interest existed, “was based on
an objectively unreasonable determination of the facts,
” because “[t]he record clearly establishes that
Fields’s only relationship to the [investigation of
his] case was supervising the processing of a truck.”
(Id. ¶ 87.)
Generally,
Supreme Court precedent establishes that –
the Sixth Amendment grants a defendant “a fair
opportunity to secure counsel of his own choice.”
Powell [v. Alabama], [287 U.S. 45');">287 U.S. 45, ] 53
[(1932)], 53 S.Ct. 55; see [United States v.]
Gonzalez-Lopez, [548 U.S. 140');">548 U.S. 140, ] 150, 126 S.Ct. 2557
(describing “these myriad aspects of
representation”). This “fair opportunity”
for the defendant to secure counsel of choice has limits. A
defendant has no right, for example, to an attorney who is
not a member of the bar, or who has a conflict of interest
due to a relationship with an opposing party. See Wheat
v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100
L.Ed.2d 140 (1988). And an indigent defendant, while entitled
to adequate representation, has no right to have the
Government pay for his preferred representational choice. See
Caplin & Drysdale[, Chartered v. United
States], 491 U.S. [617, ] 624, 109 S.Ct. 2646');">109 S.Ct. 2646 [(1989)].
Luis v. United States, 136 S.Ct. 1083, 1089 (2016).
“The [trial court] must recognize a presumption in
favor of petitioner’s counsel of choice, but that
presumption may be overcome not only by a demonstration of
actual conflict but by a showing of a serious potential for
conflict. The evaluation of the facts and circumstances of
each case under this standard must be left primarily to the
informed judgment of the trial court.” Wheat,
486 U.S. at 164.
Supreme
Court precedents do not clearly establish a constitutional
right to continued representation of appointed attorneys,
see United States v. Parker, 469 F.3d 57, 61 (2d
Cir. 2006)(Sotomayor, J.), or continued representation when a
potential conflict arises because of a side-switching,
non-attorney employee without a waiver of the conflict by
both sides.[10] Although Fields may have performed
limited hands-on work on the investigation of Mrs.
Gilliam’s murder, he was present as a supervisor during
the processing of an important piece of evidence, the truck;
he was privy to sensitive information regarding the
investigation and other investigations by virtue of his
position as second in command;[11] and the record contains no
indication that any effort was made to isolate Fields from
the PDO’s representation of Perkins or to maintain the
confidential information possessed by Fields. Under the
particular facts of this case[12] and in light of the lack of
controlling Supreme Court precedent addressing a similar fact
situation, the court finds that deference to the decision of
the Alabama Court of Criminal Appeals is warranted.
CONCLUSION
The
state court’s factual findings are supported by the
record and must be given deference by this court. Perkins has
the burden under 28 U.S.C. § 2254(e)(1) to rebut the
state court’s factual determinations as to this issue
with clear and convincing evidence. He has failed to
demonstrate that the state court’s rejection of this
claim relied on erroneous facts, or applied law contrary to
established United States Supreme Court precedent or in a
manner that was objectively unreasonable in light of such
precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals
unreasonably applied, or reached a decision contrary to,
clearly established federal law. Therefore, Perkins is not
entitled to habeas relief on this ground.
C.
FAILURE TO GRANT A CHANGE OF VENUE
Perkins
alleges that “[t]he state trial court violated [his]
right to an impartial jury by forcing him to be tried in a
community that had been saturated with publicity and [that]
feared [him].” (Doc. 1 ¶ 91.) According to
Perkins, “75 percent of veniremembers admitted to
having been exposed to substantial pretrial publicity about
the crime [and] [s]even members of [his] jury admitted to
being exposed to pretrial publicity by radio, television,
newspapers, or word of mouth.” (Id. ¶
99.) He contends, “The publicity had three
interconnected aspects that constitute a departure from
ordinary, objective news coverage, ” (id.
¶ 93):
“First, much of the publicity reflected or provoked the
community’s particularized fear of being harmed by
Perkins in their homes; members of the community were
depicted as victims of terrorism.” (Id. ¶
94.)
“Second, the publicity linked Perkins to broader issues
of public policy, politicizing his case. Perkins was on
parole at the time of the alleged crimes, and people blamed
the Alabama Board of Pardons and Paroles for failing to
protect the public.” (Id. ¶ 96.)
“Third, the coverage encouraged readers victimized by
fear of Perkins to identify with Cathy Gilliam and her
surviving husband and children. The narrative - which
mirrored the prosecution’s trial theme - was that
Perkins was a rapist and Cathy Gilliam died to protect her
daughter and to avoid being raped.” (Id.
¶ 97.)
“This
combination of factors created a risk that jurors would view
their role as empowered victims taking the protection of
their community into their own hands instead of serving their
constitutionally mandated role as skeptical buffer between
Perkins and the power of the government to imprison and
execute him.” (Id. ¶ 106.)
In his
Petition, Perkins argues that the state court erred in
failing to examine the totality of the circumstances to find
“implied juror bias.” (Id. ¶ 105).
He contends that the state-court decision is “contrary
to or an unreasonable application of clearly established
federal law because the court failed to determine whether
jurors were impliedly biased based on the ‘totality of
circumstances, ’ [and] [i]nstead, . . . based its
finding that jurors were not impliedly biased solely on
‘the media materials presented to the trial
court.’” (Id. ¶ 108 [citing
Murphy, 421 U.S. at 799; quoting Perkins,
808 So.2d at 1069].) He alleges (1) “the state court
examined the transcript of voir dire only to determine
whether jurors were actually biased in fact, not to determine
whether a presumption of prejudice arose based on the
totality of the circumstances, ” and (2) “the
state court completely failed to consider as part of the
totality of the circumstances the statements of public
officials about the crime, the victimization of the
community, the emotional narrative of the prosecution’s
case, or the extensive and inherently prejudicial
collateral-act evidence that the prosecution put before the
jury, much of it keyed to media reports.”
(Id.) Also, “Assuming that the state court
properly considered the totality of the circumstances,
” Perkins contends that “its conclusion that
there was no implied bias[, ] and thus no presumed
prejudice[, ] . . . involve[s] an unreasonable application of
clearly established federal law.” (Id.
[citing, inter alia, Abdul-Kabir v.
Quarterman, 550 U.S. 233, 258 (2007)].) Finally, he
argues, “The state court decision [that the media
coverage was relatively objective is] an unreasonable
determination of the facts in light of the evidence in the
record, ” because (1) “[m]ost of the articles
adopted the perspective of actual victims, . . . potential
victims, . . . and law enforcement officers, ” and (2)
an article published the day before trial “described
the community’s steadfast belief that Perkins was
guilty, its refusal to forgive, and its overwhelming support
for sentencing him to death.” (Id. ¶
109.)
On
direct appeal, the Alabama Court of Criminal Appeals held:
We acknowledge that Perkins’s case received extensive
publicity in Tuscaloosa County. However, “‘in
order to obtain a change of venue, it must be shown that
pre-trial publicity surrounding the case was inherently
prejudicial.’” Oryang [v.
State], [642 So.2d 979] 983 [(Ala.Crim.App.1993)],
quoting Holladay v. State, 549 So.2d 122, 125 (Ala.
Cr. App. 1988), aff’d, 549 So.2d 135 (Ala.), cert.
denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
We recognize that the “presumptive prejudice”
standard is “‘rarely’ applicable, and is
reserved for only ‘extreme situations.’”
Hunt [v. State], 642 So.2d [999, ] 1043
[(Ala.Crim.App.1993)], quoting Coleman v. Kemp, 778
F.2d 1487, 1537 (11th Cir. 1985), cert. denied, 476 U.S.
1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). We also
recognize that Perkins’s burden – to show that
pretrial publicity so saturated the community as to deny him
a fair trial – is a very heavy burden. See
Hunt, supra at 1043. “‘Prejudicial’
publicity usually must consist of much more than stating the
charge and reporting on the pretrial and trial processes.
‘Publicity’ and ‘prejudice’ are not
the same thing. Excess publicity does not automatically or
necessarily mean that the publicity was prejudicial.”
[Id.]
We do not find that the pretrial publicity in this case so
“pervasively saturated” the community as to
render the court proceedings nothing more than a
“hollow formality.” Oryang, supra, at
983. Nor do we find that the publicity was so inherently
prejudicial as to create a presumption of prejudice. To
justify a change of venue, the publicity must be both
extensive and sensational in nature. “If the media
coverage is factual as opposed to inflammatory or
sensational, this undermines any claim for a presumption of
prejudice.” United States v. Angiulo, 897 F.2d
1169, 1181 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct.
130, 112 L.Ed.2d 98 (1990). We have examined the media
materials presented to the trial court, and we find that most
of the reports were factual and relatively objective rather
than accusatory, inflammatory, or sensational. Perkins has
failed to prove that the media reports so inflamed or
saturated the community as to create an emotional tide
against him. Thus, he has not shown that the pretrial
publicity in this case was so inherently or presumptively
prejudicial as to constitute one of those “extreme
situations” that warrant a presumption of prejudice.
In addition, we find no evidence of bias on the part of
prospective jurors so pervasive as to indicate actual
prejudice. On appeal, Perkins offers us nothing more than the
assertion that the majority of the prospective jurors on the
venire had heard about the case and that 25 of the 88
prospective jurors had been excused for cause based on their
exposure to pretrial publicity. However, as the Alabama
Supreme Court stated in Ex parte Grayson, 479 So.2d
76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88
L.Ed.2d 157 (1985):
[“As the Supreme Court explained in Irvin v.
Dowd, 366 U.S. 717');">366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6
L.Ed.2d 751 (1961):]
“‘To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an
accused, without more, is sufficient to rebut the presumption
of a prospective juror’s impartiality would be to
establish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court. . .
.’
“The standard of fairness does not require jurors to be
totally ignorant of the facts and issues involved. Murphy
v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031,
2035-2036, 44 L.Ed.2d 589 (1975). Thus, ‘[t]he proper
manner for ascertaining whether adverse publicity may have
biased the prospective jurors is through the voir dire
examination.’ Anderson v. State, 362 So.2d
1296, 1299 (Ala.Crim.App.1978).”
479 So.2d at 80. “ ‘ “The relevant question
is not whether the community remembered the case, but whether
the jurors at [the accused’s] trial had such fixed
opinions that they could not judge impartially the guilt of
the defendant.” Patton v. Yount, 467 U.S.
1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847
(1984).’ ” Siebert v. State, 562 So.2d
586, 589 (Ala. Cr. App. 1989), aff’d, 562 So.2d 600
(Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112
L.Ed.2d 408 (1990), quoting Fortenberry v. State,
545 So.2d 129 (Ala. Cr. App. 1988), aff’d, 545 So.2d
145 (Ala. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937,
109 L.Ed.2d 300 (1990). The jury venire in this case was
extensively and thoroughly examined in an individual,
sequestered setting regarding each prospective juror’s
knowledge about the case. While the majority of prospective
jurors were aware of the abduction and murder of Mrs.
Gilliam, and of the manhunt by law enforcement officials to
capture Perkins following the murder, opinions of less than
one-third (25 of 88) of the venire were actually tainted by
pretrial publicity. See Russell v. State, 739 So.2d
58 (Ala. Cr. App. 1999).
Perkins has failed to show either that the community was
saturated with pretrial publicity or that actual prejudice
existed among the jurors at his trial. The media coverage was
not so sensational and inflammatory as to create a
presumption of prejudice. The record contains no indication
that any juror who sat on Perkins’s jury had a fixed
opinion of Perkins’s guilt or that the verdict was not
impartially rendered on the evidence presented at trial.
Accordingly, we find that the trial court did not abuse its
discretion in denying Perkins’s motion for a change of
venue.
Perkins, 808 So.2d 1068-70.
In his
Petition, Perkins challenges the state court’s finding
regarding a presumption of prejudice; he does not challenge
the court finding that his jury was not actually prejudiced
by pretrial publicity. Generally –
[The Supreme] Court has established that a refusal to grant a
motion for change of venue may constitute a violation of due
process. See Groppi v. Wisconsin, 400 U.S. 505, 91
S.Ct. 490, 27 L.Ed.2d 571 (1971); Rideau v.
Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663
(1963); Irvin v. Dowd, [366 U.S. 717');">366 U.S. 717, 722, 81 S.Ct.
1639, 1642, 6 L.Ed.2d 751 (1961)]. A defendant seeking to
establish such a violation must demonstrate
either that his trial resulted in
“identifiable
prejudice” or that it gave rise to a
presumption of prejudice because it
involved “such a probability that prejudice will result
that it is deemed inherently lacking in due process.”
Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct.
1628, 1632-1633, 14 L.Ed.2d 543 (1965). In deciding whether
such a presumption of prejudice is warranted, courts must
examine “any indications in the totality of
circumstances that petitioner’s trial was not
fundamentally fair.” Murphy v. Florida, 421
U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).
Brecheen v. Oklahoma, 485 U.S. 909, 910
(1988)(Marshall, J., dissenting from denial of cert.)
(emphasis added).
“A
presumption of prejudice, [Supreme Court] decisions indicate,
attends only the extreme case.” Skilling v. United
States, 561 U.S. 358, 379-81 (2010)(citing,
inter alia, Sheppard v. Maxwell,
384 U.S. 333, 354-55, 358 (1966), Estes, 381 U.S. at
536-38, Rideau, 373 U.S. at 725-27); see also
Mills v. Singletary, 63 F.3d 999, 1010 (11th Cir.
1995)(“[T]he principle of presumed prejudice is rarely
applicable and reserved for extreme
situations.”)(internal quotations and citations
omitted).
“[P]retrial
publicity even pervasive, adverse publicity does not
inevitably lead to an unfair trial.” Nebraska Press
Ass’n v. Stuart, 427 U.S. 539, 554 (1976),
quoted in Skilling, 561 U.S. at 384. And, “A
high level of publicity is not necessarily inconsistent with
the ability of the defendant to obtain a fair trial where the
publicity has been largely factual in nature
or where it abated some time prior
to trial.” Gannett Co. v. DePasquale, 443 U.S.
368, 443 (1979)(Blackmun, J., concurring in part and
dissenting in part) (citing Murphy, 421 U.S. at 802;
Beck v. Washington, 369 U.S. 541, 542-45, 557-58
(1962); Stroble v. California, 343 U.S. 181, 191-94
(1952))(internal citations omitted; emphasis added).
“[T]he Supreme Court has ruled that we cannot presume
prejudice in the absence of a ‘trial atmosphere . . .
utterly corrupted by press coverage.’” United
States v. Campa, 459 F.3d 1121, 1144 and n.198 (11th
Cir. 2006)(quoting Dobbert v. Florida, 432 U.S. 282,
303 (1977)(quoting Murphy, 421 U.S. at 798)).
“[T]he ‘quantum’ of the publicity does not,
standing alone, create a presumption that a defendant was
denied a fair trial by an impartial jury. . . . [T]he nature
of the publicity and whether it is the sort that could be
laid aside by jurors, rather than its volume, is the crucial
factor to be considered.” Davis v. Jones, 441
F.Supp.2d 1138, 1167-68 (M.D. Ala. 2006)(internal citations
and quotations omitted), aff’d, 506 F.3d 1325
(11th Cir. 2007).
Although
the nature of the murder, the character and criminal history
of Perkins, and the subsequent manhunt received a great deal
of media coverage in August 1990, nothing in the record
indicates that media coverage created “bedlam” or
a “carnival atmosphere” at the time of the trial
in April 1994. See Skilling, 561 U.S. at 380
(quoting Sheppard v. Maxwell, 384 U.S. 333, 355
(1966)).[13] The articles are primarily factual,
focused on the kidnaping and murder of Mrs. Gilliam,
Perkins’s criminal history, the ensuing manhunt, and
the sentiment in the community during August 1990. Media
coverage after this time was limited and each member of the
venire was questioned about their exposure to news coverage.
In
addition to the volume and the content of the media coverage,
another factor the court must consider in the totality of the
circumstances is the timing of the adverse pretrial
publicity. In this case, the majority of the media stories
included in the record occurred at the time of the crime and
the subsequent manhunt in August 1990. Two articles were
published in the Tuscaloosa newspaper the Sunday before jury
selection began in April 1994 – “a time when
prejudicial publicity was greatly diminished . . . .”
See Patton v. Yount, 467 U.S. 1025, 1032 (1984); see
also Skilling, 561 U.S. at 383 (noting “the
decibel level of media attention diminished somewhat in the
[four] years” between Enron’s bankruptcy and
Skilling’s trial). “That time soothes and eases
[public sentiment] is a perfectly natural phenomenon,
familiar to all.” Patton, 467 U.S. at 1034-35.
These articles and word-of-mouth discussions occurring at or
near the time of jury selection do not reveal a
“barrage of inflammatory publicity immediately prior to
trial, amounting to a huge . . . wave of public
passion.” Id. at 1033 (internal citations and
quotations omitted). “[T]he passage of time . . . can
be a highly relevant fact. In the circumstances of this case,
. . . it clearly rebuts any presumption of partiality or
prejudice that [may have] existed at the time of [the crime
and the subsequent manhunt].” See id. at 1035.
Another
factor the court should consider is “the credibility of
prospective jurors who indicate during voir dire that they
could be impartial despite having been exposed to pretrial
publicity about the case.” United States v.
Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir. 1992). This
court has considered the extensive voir dire in this case and
finds that the majority of prospective jurors had not closely
followed the media coverage of this case. And, the twelve
jurors and two alternates selected to serve on the jury
appear to have “credibly asserted that they could
remain impartial.” Id. at 1525. No. evidence
from these venire members indicates otherwise.
Therefore,
the court finds “the totality of the circumstances
provides no basis for concluding that ‘the community
was . . . so inflamed and biased [ ] as to create a
presumption of prejudice that a fair and impartial jury panel
could not be impaneled.’” Id. (quoting
United States v. De La Vega, 913 F.2d 861, 865
(1990)). The court finds no error in the state court’s
judgment that the majority of the articles were objective.
“[E]xtensive knowledge in the community of either the
crimes or the putative criminal is not sufficient by itself
to render a trial constitutionally unfair.”
Dobbert, 432 U.S. at 303. Moreover, the opinions and
feelings of crime victims and community members are
“facts” and articles reporting such facts are
objective reports – unlike editorials or opinion
pieces.
Based
on the circumstances of this case, including the entire
record of the voir dire of the venire, the newspaper articles
submitted with the appeal record, and the transcripts of the
hearings on Perkins’s motion for change of venue, the
court finds Perkins has not demonstrated that the decision of
the Alabama Court of Criminal Appeals was contrary to or an
unreasonable application of Supreme Court precedent or that
its decision was an unreasonable determination of the facts.
For all
the foregoing reasons, this claim is without merit and is due
to be denied.
CONCLUSION
The
state court’s factual findings are supported by the
record and must be given deference by this court. Perkins has
failed to demonstrate that the state court’s rejection
of this claim relied on erroneous facts, or applied law
contrary to established United States Supreme Court precedent
or in a manner that was objectively unreasonable in light of
such precedent. Given these considerations, this court cannot
conclude that the Alabama Court of Criminal Appeals
unreasonably applied, or reached a decision contrary to,
clearly established federal law. Therefore, Perkins is not
entitled to habeas relief on this ground.
D.
ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR
TRIAL AND RELIABLE SENTENCE
Perkins
contends that his “Fourteenth Amendment right to a fair
trial and Eighth Amendment right to a reliable determination
of sentence” were violated by the trial court’s
admission of collateral-act evidence of two rapes, which
occurred in the two weeks before he killed Mrs. Gilliam; the
facts surrounding the incident at Darlene Hall’s house,
the theft of the gray truck, which contained the murder
weapon, and the trial court’s sua sponte
failure to give a limiting instruction. (Doc. 1 ¶ 111.)
He alleges:
112. In order to find Roy Perkins guilty of capital murder,
the jury had to find that Perkins intended to physically
injure or sexually abuse Cathy Gilliam at the time of the
abduction. The most direct evidence suggesting that Perkins
specifically intended to rape Cathy Gilliam came through
testimony of her daughter Candace, who testified by
stipulation that Cathy Gilliam yelled the word
“rapist” as she was being led away from her home.
[(Doc. 10, Vol. 11, Tab 19 at 1755.)] However, the
prosecution lacked any physical evidence of a sexual assault,
and both Cathy Gilliam, [(id., Vol. 12 at 2029)],
and the medical examiner who performed Gilliam’s
autopsy, [(id., Vol. 13 at 2153)], stated that
Gilliam had not been raped.
113. To bolster its claim that Perkins specifically intended
to rape and kill Cathy Gilliam, the prosecution argued that
it was entitled to present collateral-act evidence showing
that Perkins had abducted and raped two other women in the
weeks before the abduction of Cathy Gilliam. [(See,
e.g., id., Vol. 11, Tab 16 at 1705, 1709.)]
Defense counsel argued that the collateral-act evidence was
inadmissible because (1) the probative value of the evidence
was low in light of substantial differences between the other
crimes and the crime involving Cathy Gilliam, [(see,
e.g., id. at 1700, 1708, 1710, 1715)], and
(2) the prejudicial effect of the evidence substantially
outweighed the probative value of the other crimes,
[(see, e.g., id. at 1714)],
particularly in light of the extensive pretrial media
coverage depicting Perkins as a rapist, [(id. at
1706-07)]. Defense counsel moved repeatedly to limit
admission of the collateral-act evidence, [(see,
e.g., id., Vol. 1 at 177-78; id.,
Vol. 11, Tab 16 at 1696; id., Vol. 15 at 2500)], but
their motions were repeatedly denied by the trial court,
[(see, e.g., id., Vol. 1 at 191;
id., Vol. 11, Tab 17 at 1715; id., Vol. 15
at 2508)]. As a result, half of the prosecution’s 39
witnesses testified about Perkins’s other alleged
crimes or acts. The testimony and physical evidence about the
collateral acts, particularly two alleged rapes, pervaded the
trial.
114. The admission of collateral-act evidence to prove a
disputed issue does not necessarily render a trial
fundamentally unfair. See Estelle v. McGuire, 502
U.S. 62, 67-70 (1991). Intent was a disputed issue at
Perkins’s trial because there was no evidence that
Cathy Gilliam had been sexually abused.[14] Most of the
collateral-act evidence was admitted to address that issue;
the prosecution’s theory was that because Perkins had
raped two other women he had abducted, he must have intended
to rape Cathy Gilliam. (See, e.g., doc. 10,
Vol. 11, Tab 16 at 1705.)] However, the evidence actually
presented went far beyond serving that narrow purpose,
frequently involving graphic testimony irrelevant to the
question of intent.
115. The collateral-act evidence is summarized in 12 reported
pages of the opinion of the Alabama Court of Criminal
Appeals. Perkins v. State, 808 So.2d 1041, 1080-92
(Ala.Crim.App.1999). It included needlessly lurid testimony
from alleged victims [D.W.] and [B.P.], much of it calculated
to make Perkins appear repulsive. [(See,
e.g., doc. 10, Vol. 12 at 1862-1911.)] There was
also irrelevant testimony about the practices involved in
post-rape medical examinations. Various personnel affiliated
with law enforcement agencies testified about investigating
the rapes and securing rape evidence. From the Alabama
Department of Forensic Science, a serologist testified about
performing DNA type matching on samples in the rape kits,
[(id., Vol. 14 at 2247-69, 2289-2301)], while a
trace-evidence examiner testified about collecting hair and
fiber samples from rape kits, [(id. at 2301-08)].
116. In addition to the rape evidence, the prosecution
presented other collateral-act evidence. Darlene Hall
described an episode involving a man she identified as
Perkins attempting to use her telephone shortly before Cathy
Gilliam was abducted, [(id., Vol. 11, Tab 19 at
1756-81)], supplemented by testimony of law enforcement
personnel. [(See, e.g., id., Vol.
12 at 1978-84.)] And further statements and testimony
suggested that Perkins was a thief. [(Id., Vol. 11,
Tab 17 at 1727-28; id., Vol. 13 at 2061.)]
117. The prosecution argued from the collateral act evidence
at length during the guilt phase. In spite of the
defense’s repeatedly expressed concerns about the
effects that the collateral-act evidence would have on
jurors’ ability to rationally consider the evidence,
the prosecution exploited that evidence not to establish
intent, but to vilify Perkins based on immaterial and
occasionally fraudulent details. The prosecution argued that
Perkins “sexually assaulted [D.W.] in almost every
orifice she had.” (Id., Vol. 15, Tab 21 at
2628.)] It said, impersonating Perkins, “Gee,
whitakers, [D.W.], after it’s all over with, I’ve
assaulted you in every orifice, just about other than your
nose and your ear, but I didn’t mean to do it, please
forgive me.” [(Id. at 2630.)] It emphasized
that Perkins had allegedly sexually assaulted “his own
cousin.”[15] [(Id. at 2629.)] It argued that
“we know” that Perkins treated women “like
sex slaves.” [(Id., Vol. 16, Tab 23 at 2667.)]
And it characterized Perkins’s encounter with Darlene
Hall as a “date attempt” that he “struck
out on, ” arguing that Hall was a third intended rape
victim. [(Id., Vol. 15, Tab 21 at
2629.)][16]
118. The collateral-act evidence and inflammatory arguments
made by the prosecution compounded the effects of prejudicial
information that had already saturated the community and
reached most jurors. Perkins had been reviled as a rapist in
the local media, [(id., Vol. 24, Tab 43 at 52-93)];
even the Governor of Alabama had decried him as a rapist,
[(id., Vol. 4 at 238)], and there had been death
threats against him and his counsel, [(id. at
238-39)].
119. Though it knew that the collateral-act evidence had
pervaded the proceedings as well as the greater community,
the trial court gave no limiting instruction prior to the
jury’s guilt phase deliberations concerning how the
jury should use the collateral-act evidence.
120. After Perkins was convicted, a penalty-phase trial was
held before the jury. The prosecution incorporated all of the
previous collateral-act evidence into the penalty phase.
[(Id., Vol. 17, Tab 28 at 2776.)] As during the
prior phase, the trial court gave no instruction limiting
what inferences the jury could draw from the evidence.
. . .
135. Evidence of a criminal defendant’s bad character
has traditionally been held inadmissible because it may
“weigh too much with the jury” and “so
overpersuade them as to prejudge one with a bad general
record and deny him a fair opportunity to defend against a
particular charge.” Michelson v. United
States, 335 U.S. 469, 476 (1948). The risk of harm
attendant to character evidence is even greater where the
prosecution makes “pronounced and persistent”
improper arguments that call attention to the most
prejudicial details. Cf. Berger v. United States,
295 U.S. 78, 89 (1935) (“[A prosecutor’s]
improper suggestions, insinuations, and, especially,
assertions of personal knowledge are apt to carry much weight
against the accused when they should properly carry
none.”). And the risk of harm is at its height where a
trial court fails to give a cautionary instruction. Cf.
Caldwell v. Mississippi, 472 U.S. 320, 338-39 (1985)
(holding prosecutor’s improper argument
unconstitutional where trial court “failed to correct
the prosecutor’s remarks”).
136. Here, the prosecution’s case against Perkins was
weak in several respects. At the guilt phase, the principal
evidence supporting the intent elements – intent to
rape and intent to kill – was that Cathy Gilliam had
yelled “rapist, ” that Perkins had allegedly
raped two women, and that Perkins had stipulated that he
caused Gilliam’s death. Yet substantial evidence showed
that Perkins intended neither to rape nor to kill Gilliam,
including the statements of the victim, the actions of
Perkins following the shooting, and the changed circumstances
between the time of the collateral rapes and the time of the
abduction of Gilliam. By portraying Perkins as a bad person,
the prosecution encouraged the jury to convict him of capital
murder based on irrational reactions instead of the quality
or strength of the evidence. At the penalty phase, the
prosecution relied on all of the guilt phase evidence, and
argued that it was Perkins’s “behavior
we’re looking at, ” [(doc. 10, Vol. 18, Tab 34 at
2979)], and that Perkins had “no concept of human
decency, ” [(id., Vol. 18 at 2967)].
137. By needlessly presenting the jury with a host of bad
conduct allegedly committed by Perkins, and then intensifying
the details in their arguments, the prosecution invited
jurors to convict Perkins and sentence him to death based on
distaste for the State’s portrayal of who Perkins was
rather than a rational response to the relevant evidence
about the crime and Perkins’s degree of culpability.
See Ege v. Yukins, 485 F.3d 364, 377 (6th Cir.
2007)(“If the prosecution felt that the [prejudicial]
evidence was so important, it does not take much of a
cognitive leap to believe that the jury viewed it as
important as well.”). Without a limiting instruction
from the trial court to guide the jury’s response to
the prosecution’s evidence and arguments, the violation
of Perkins’s Eighth and Fourteenth Amendment rights had
a substantial and injurious influence on the jury’s
verdict. Therefore, Perkins is entitled to relief.
(Doc. 1 ¶¶ 112-20; 135-37 [footnotes added].)
1.
Overlooked Claims or Presumed Ruling on the Merits
Perkins
contends that the Alabama Court of Criminal Appeals
“failed to address [his] claim[s] that the unlimited
admission of the [collateral-act] evidence” violated
his right to due process under the Fourteenth Amendment and
his right to a reliable sentence under the Eighth Amendment.
(Id. ¶ 122.) Therefore, this court
“should review [his] claim[s] de novo because [they
were] overlooked by the Alabama Court of Criminal
Appeals.” (Id. ¶ 123.)
With
regard to his claim that collateral-acts evidence was
improperly admitted, the Alabama Court of Criminal Appeals
held that admission of this evidence was not error –
“plain or otherwise, ” and it defined
“plain error” as “error that is so obvious
that the failure to notice it would seriously affect the
fairness or integrity of the judicial proceedings.”
Perkins, 808 So.2d at 1084-85, 1088, 1092, 1093
(quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala.
1997)). The Alabama Supreme Court has noted that “a
review under the plain error rule, which guarantees a
defendant a fundamental right to fairness, is tantamount to a
due process review.” Pace v. State, 714 So.2d
332, 337 (Ala. 1997)(quoting Ex parte Myers, 699
So.2d 1285, 1296-98 n.4 (Ala. 1997)); see also Thornburg
v. Mullin, 422 F.3d 1113, 1125 (10th Cir.
2005)(“We see no practical distinction between the
formulations of plain error in Thornburg [v.
State, 985 P.2d 1234, 1242 (Okla. Crim. App. 1999), ]
and Cleary [v. State, 942 P.2d 736, 752-53
(Okla. Crim. App. 1997), ] and the federal due-process test,
which requires reversal when error ‘so infused the
trial with unfairness as to deny due process of law, ’
Estelle [v. McGuire], 502 U.S. [62, ] 75
[(1991)]. Because the [Oklahoma Court of Criminal Appeals]
applied the same test we apply to determine whether there has
been a due-process violation, we must defer to its ruling
unless it ‘unreasonably appli[ed]’ that test. 28
U.S.C. § 2254(d).”).
Nevertheless,
the court does not decide whether the Alabama court decided
Perkins’s federal constitutional claims on the merits
by deciding that the evidentiary rulings were not plain
error, because it finds no error based on a de novo review of
these claims.
Even if the state court used an incorrect legal standard,
[the court] need not determine whether AEDPA’s
deferential standard of review, 28 U.S.C. § 2254(d),
applies in this situation. Cf. Williams v. Taylor,
529 U.S. 362, 397-398, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). That is because, even if AEDPA deference does not
apply, [petitioner] cannot show prejudice under de
novo review, the more favorable standard of review for
[petitioner]. Courts cannot grant writs of habeas corpus
under § 2254 by engaging only in de novo review
when it is unclear whether AEDPA deference applies, §
2254(d). In those situations, courts must resolve whether
AEDPA deference applies, because if it does, a habeas
petitioner may not be entitled to a writ of habeas corpus
under § 2254(d). Courts can, however, deny writs of
habeas corpus under § 2254 by engaging in de
novo review when it is unclear whether AEDPA deference
applies, because a habeas petitioner will not be entitled to
a writ of habeas corpus if his or her claim is rejected on
de novo review, see § 2254(a).
Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
2.
Admission of Evidence of Prior Acts and Perkins’s Right
to Due Process
Perkins
claims
125. The United States Supreme Court has made clear that
state evidentiary rulings must be fundamentally fair to
comport with the Due Process Clause. See,
e.g., Rochin v. California, 342 U.S. 165,
168-74 (1952). Accordingly, prosecution tactics to make the
evidence against a defendant appear more damaging than it
actually is can render a trial fundamentally unfair.
See, e.g., Napue v. Illinois, 360
U.S. 264, 169 (1959)(“[I]t is established that a
conviction obtained through use of false evidence, known to
be such by representatives of the State, must fall under the
Fourteenth Amendment.”); Townsend v. Burke,
334 U.S. 736, 740-41 (1948)(holding defendant was denied due
process where he was “sentenced on the basis of
assumptions concerning his criminal record which were
materially untrue”); cf. Berger v. United
States, 295 U.S. 78, 85 (1935)(reversing conviction
where prosecutor’s remarks were “calculated to
mislead the jury”). See generally Wellons v.
Hall, 558 U.S. 220, 220 (2010)(per curiam) (“From
beginning to end, judicial proceedings conducted for the
purpose of deciding whether a defendant shall be put to death
must be conducted with dignity and respect.”).
126. Collateral-act evidence “is generally recognized
to have potentiality for prejudice” and “is
usually excluded” except where the “possibility
of prejudice is believed to be outweighed by the validity of
the State’s purpose in permitting introduction of the
evidence.” Spencer v. Texas, 385 U.S. 554,
560-61 (1967). Where a state proves a legitimate purpose for
presenting collateral-act evidence, “defendants’
interests are protected by limiting instructions.”
Id. at 561.
127. Though collateral-act evidence is often admissible for
limited purposes, a state violates a defendant’s rights
where “erroneous admission of evidence makes a
petitioner’s trial ‘so fundamentally unfair that
the conviction was obtained in violation of the due process
clause of the fourteenth amendment.’” Herring
v. Sec’y, Dep’t of Corr., 397 F.3d 1338,
1355 n.8 (11th Cir. 2005)(quoting Thigpen v.
Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991)); see
also Dobbs v. Kemp, 790 F.2d 1499, 1504 (11th Cir.
1986)(recognizing state court evidentiary rulings may render
trial fundamentally unfair). Factors that courts consider in
determining whether admission of evidence renders a trial
fundamentally unfair include whether “the evidence is
close, ” the “manner in which the complained of
evidence was presented, ” whether “the evidence
was highly persuasive, ” whether the evidence
“was used in closing argument, ” and
“whether the defense was able to effectively
counter” the evidence. Maurer v. Dep’t of
Corr., 32 F.3d 1286, 1289 (8th Cir. 1994). The ultimate
question is whether the erroneous admission of evidence
robbed the trial of “the dignity due a rational
process.” See Houston v. Estelle, 569 F.2d
372, 383 (5th Cir. 1978).
128. Here, the pervasive testimony about collateral acts
denied Perkins’s right to due process of law because
the “extraneous considerations render[ed] improbable or
impossible an impartial judgment as to guilt.” See
Menzies v. Procunier, 743 F.2d 281, 289 (5th Cir. 1984).
The permissible use for the two collateral rapes was to show
that they occurred, not how they occurred in ways different
from the crime at issue or how they were investigated.
Therefore, the legitimate purpose for admitting the
collateral evidence did not require emphasizing the details.
129. Nevertheless, the prosecution presented the rapes in
painstaking detail, scattering references to them throughout
the trial and emphasizing the most inflammatory aspects. The
prosecution used the irrelevant details throughout its
opening statement and closing arguments. The trial court did
not even issue a limiting instruction.
130. In addition to the rape testimony, testimony about the
alleged encounter between Darlene Hall and Perkins, as well
as testimony suggesting that Perkins was a thief, heightened
the risk that jurors would find Perkins guilty because they
thought he was a bad person who needed to be punished, not
because the relevant evidence proved him guilty of capital
murder beyond a reasonable doubt. “It is clear that the
cumulative effect of the conduct of the state was to arouse
prejudice” and that the jury was “inflamed by
marginally relevant and irrelevant evidence that was highly
prejudicial.” Cf. Walker v. Engle, 703 F.2d
959, 968-69 (6th Cir. 1983). This fundamental unfairness
infected both the guilt phase and the penalty phase.
Perkins’s conviction and sentence should be vacated.
See Id . at 969 (“When a trial court permits
the constitutional protections to be overridden by zealous
prosecutors without interjecting restraining or curative
measures, the federal courts must be alert to act as the
district court did here.”).
(Doc. 1 ¶¶ 125-30.)
“[I]t
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62');">502 U.S. 62, 67-68 (1991)(citing 28 U.S.C.
§ 2241 and Rose v. Hodges, 423 U.S. 19, 21
(1975))(footnote omitted). “In our system of justice,
[a] fair trial for persons charged with criminal offenses is
secured by the Sixth Amendment, which guarantees to
defendants the right to counsel, compulsory process to obtain
defense witnesses, and the opportunity to cross-examine
witnesses for the prosecution.” Perry v. New
Hampshire, 565 U.S. 228, 231-32 (2012). “Those
safeguards apart, admission of evidence in state
trials is ordinarily governed by state law, and the
reliability of relevant testimony typically falls within the
province of the jury to determine.”
Id. at 232 (emphasis added). Therefore,
only when the state court’s
ruling with regard to the admission of evidence is alleged to
have deprived the petitioner of his right to due process will
a federal habeas court consider whether that error was of
such magnitude that it denied petitioner’s right to a
fundamentally fair trial in violation of the due process
clause. See Alderman v. Zant, 22 F.3d 1541, 1555
(11th Cir. 1994)(citing, inter alia, Lisenba v.
California, 314 U.S. 219, 228 (1941)). “As applied
to a criminal trial, denial of due process is the failure to
observe that fundamental fairness essential to the very
concept of justice. In order to declare a denial of it [the
court] must find that the absence of that
fairness fatally infected the trial; the acts
complained of must be of such quality as necessarily prevents
a fair trial.” Lisenba, 314 U.S. at 236-37
(emphasis added).
The right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend
against the State’s accusations. The rights to confront
and cross-examine witnesses and to call witnesses in
one’s own behalf have long been recognized as essential
to due process. Mr. Justice Black, writing for the Court in
In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507,
92 L.Ed. 682 (1948), identified these rights as among the
minimum essentials of a fair trial:
‘A person’s right to reasonable notice of a
charge against him, and an opportunity to be heard in his
defense – a right to his day in court – are basic
in our system of jurisprudence; and these rights include, as
a minimum, a right to examine the witnesses against him, to
offer testimony, and to be represented by counsel.’
Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
“But apart from trials conducted in violation of
express constitutional mandates, a constitutionally unfair
trial takes place only where the barriers and safeguards are
so relaxed or forgotten that the proceeding is more a
spectacle or trial by ordeal than a disciplined
contest.” United States v.
Augenblick, 393 U.S. 348, 356 (1969)(citing Rideau
v. Louisiana, 373 U.S. 723, 726 (1963); and Brown v.
Mississippi, 297 U.S. 278, 285 (1936))(internal
citations omitted).
Perkins
claims that the admission of collateral-act evidence denied
him due process pursuant to the Fourteenth Amendment and a
reliable sentence under the Eighth Amendment. He argues:
131. Under the Eighth Amendment, relief is further warranted
due to the danger that Perkins’s sentence of death is
unreliable. The Eighth Amendment “gives rise to a
special ‘need for reliability in the determination that
death is the appropriate punishment’ in any capital
case.” Johnson v. Mississippi, 486 U.S. 578,
584 (1988)(quoting Gardner v. Florida, 430 U.S. 349,
393-64 (1977)). The United States Supreme Court has
repeatedly cautioned that “[c]apital punishment must be
limited to those offenders who commit ‘a narrow
category of the most serious crimes’ and whose extreme
culpability makes them ‘the most deserving of
execution.’” Roper v. Simmons, 543 U.S.
551, 568 (2005) (quoting Atkins v. Virginia, 536
U.S. 304, 319 (2002)). Circumstances that present an undue
risk of unreliable or arbitrary imposition of the death
penalty - meaning death sentences for those who lack extreme
culpability - violate the Eighth Amendment’s
proscription against cruel and unusual punishment.
See, e.g., id.
132. Admission of irrelevant, inflammatory evidence during
the penalty phase of a capital trial is a practice that
presents an undue risk of arbitrariness. Booth v.
Maryland, 482 U.S. 496, 508-09 (1987), overruled on
other grounds by Payne v. Tennessee, 501 U.S. 808, 829
n.2 (1991).[17] In Booth v. Maryland, a
prosecutor presented evidence that members of the
victim’s family believed the crime was vicious and did
not think that the person who did it could be rehabilitated.
Id. at 508. The United States Supreme Court held
that “admission of these emotionally charged opinions
as to what conclusions the jury should draw from the evidence
clearly is inconsistent with the reasoned decisionmaking we
require in capital cases.” Id. 508-09. The
Supreme Court explained that the evidence was impermissible
because it could “serve no other purpose than to
inflame the jury and divert it from deciding the case on the
relevant evidence concerning the crime and the
defendant.” Id. at 508.
133. As in Booth, there is an intolerable risk here
that Perkins was sentenced to death without a rational
finding that he was among “the most deserving of
execution.” Atkins, 536 U.S. at 319. Because
it misled jurors into believing that all of the
collateral-act evidence was relevant to punishment, the
prosecution’s incorporation of the inflammatory
collateral-act evidence into the penalty phase violated the
principle that the capital sentencing process “should
facilitate the responsible and reliable exercise of
sentencing discretion.” Caldwell v.
Mississippi, 472 U.S. 320, 329 (1985). Admission of
prejudicial, irrelevant evidence without adequate safeguards
violates the Eighth Amendment. See, e.g.,
Johnson, 486 U.S. at 590; Booth, 482 U.S.
at 508; cf. Romano v. Oklahoma, 512 U.S. 1, 9 (1994)
(holding no Eighth Amendment violation where jury was
correctly instructed).
(Doc. 1 ¶¶ 131-33 [footnote added].)
However,
“As [the Supreme Court] held in Romano v.
Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1
(1994), it is not the role of the Eighth Amendment to
establish a special ‘federal code of evidence’
governing ‘the admissibility of evidence at capital
sentencing proceedings.’” Kansas v.
Carr, 136 S.Ct. 633, 644 (2016)(quoting Romano,
512 U.S. at 11-12). “Rather, it is the Due Process
Clause that wards off the introduction of ‘unduly
prejudicial’[18] evidence that would render the trial
fundamentally unfair.” Id. (quoting Payne
v. Tennessee, 501 U.S. 808, 825 (1991); citing Brown
v. Sanders, 546 U.S. 212, 220-21 (2006))(footnote added;
internal quotations omitted). Therefore, Perkins may not
challenge the admission of collateral-act evidence at his
sentencing proceeding under the Eighth Amendment. “The
test prescribed by Romano for a constitutional
violation attributable to evidence improperly admitted at a
capital-sentencing proceeding is whether the evidence
‘so infected the sentencing proceeding with unfairness
as to render the jury’s imposition of the death penalty
a denial of due process.’” Id. at 644-45
(quoting Romano, 512 U.S. at 12).
The
issue for this court is whether the admission of the
collateral-act evidence – admitted during either the
guilt phase, the sentencing phase, or both – violated
Perkins’s right to due process by so infecting his
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