Perdue v. Crow
| Decision Date | 30 August 2021 |
| Docket Number | 17-CV-0063-CVE-JFJ |
| Parties | CHRISTOPHER PERDUE, Petitioner, v. SCOTT CROW, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
This matter is before the Court on petitioner Christopher Perdue's 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). Perdue challenges the judgment and sentence entered against him in the District Court of Delaware County, Case No. CF-2012-470(B). Perdue filed a brief (Dkt. # 2) in support of his petition, respondent Scott Crow filed a response (Dkt. # 25) in opposition to the petition and provided state court records (Dkt. ## 25, 26) necessary to adjudicate the petition, and Perdue filed a reply brief (Dkt. # 27). As directed by the Court, Crow also filed a supplemental response (Dkt. # 30) addressing whether some or all of Perdue's claims may be moot given that Perdue was released from prison while this matter was pending. Having considered the parties' arguments, the case materials, and applicable law, the Court denies Perdue's request for an evidentiary hearing and dismisses, in part, and denies, in part, the petition.
On December 19, 2012, law enforcement officers searched Perdue's home in Delaware County, under the terms of his probation in Delaware County Case No. CF-2009-97 (“the 2009 case”), after officers received a tip that Perdue might be manufacturing methamphetamine. Dkt. # 26-1, Tr Preliminary Hr'g/Revocation Hr'g, at 3 5-6.[1] During the search, officers recovered drug paraphernalia and “a shake and bake lab, ” i.e., a plastic bottle containing what the officers suspected were ingredients necessary to manufacture methamphetamine. Dkt. # 26-1, Tr Preliminary Hr'g/Revocation Hr'g, at 7-9. At the time of the search, Perdue's girlfriend, Zeffie Denny, and their four-year-old daughter were also in the home. Dkt. # 26-1, Tr. Preliminary Hr'g/Revocation Hr'g, at 9-11.
The State of Oklahoma (“the state”) filed an amended information in the District Court of Delaware County, Case No. CF-2012-470(B), on January 25, 2013, charging Perdue with one count each of endeavoring to manufacture a controlled dangerous substance (methamphetamine), in violation of OKLA STAT. tit. 63, § 2-401(G)(1), and child endangerment by permitting presence at manufacture of controlled dangerous substance, in violation of OKLA. STAT. tit. 21, § 852.1(A)(2), both after former conviction of four felonies. Dkt. # 26-7, Original Record (“O.R.”), at 7-8.[2]
Perdue's case proceeded to a jury trial and the jury was selected on August 28, 2013. Dkt. # 26-2, Tr. of Proceedings, at 1-2. The Honorable Barry Denney, Associate District Judge, presided over the trial, and Kathy Baker, a court-appointed attorney represented Perdue before and during the trial. Dkt. # 26-3, Tr. Trial vol. 1, at 1; Dkt. # 26-1, Tr. Preliminary Hr'g/Revocation Hr'g, at 1-3. Midway through the first day of trial, Perdue waived his right to a jury trial and entered a blind plea of no contest. Dkt. # 26-3, Tr. Trial vol. 1, at 75-76; Dkt. # 26-4, Tr. Trial vol. 2, at 1-2. Before accepting Perdue's plea, the trial court placed Perdue under oath and questioned him to ascertain whether he understood the rights that he was waiving, whether it was his voluntary decision to forgo his trial and enter a plea, and whether he understood the questions asked and answers provided on his written plea form. Dkt. # 26-4, Tr. Trial vol. 2, at 2-8; see also Dkt. # 26-7, O.R., at 9-16 (written plea form). Perdue verbalized his understanding of the consequences of entering a plea and pleaded no contest to both charges. Dkt. # 26-4, Tr. Trial vol. 2, at 5-8. The court found that Perdue was competent to enter his plea, found the evidence proffered by the State sufficient to support Perdue's guilt as to both charges, and set the matter for sentencing. Dkt. # 26-4, Tr. Trial vol. 2, at 4, 8-11.
Following a sentencing hearing on November 5, 2013, the trial court imposed a 35-year prison sentence as to each conviction, ordered those sentences to be served concurrently with each other and consecutively to the 10-year prison sentence Perdue was then serving in the 2009 case, and further ordered that Perdue serve a one-year term of post-imprisonment supervision. Dkt. # 26-5, Tr. Sentencing Hr'g, at 52-53. The trial court informed Perdue of his appeal rights and Perdue indicated that he intended to file an appeal. Dkt. # 26-5, Tr. Sentencing Hr'g, at 53.
Perdue timely moved to withdraw his plea, and a hearing was held on December 11, 2013. Dkt. # 26-6, Tr. Mot. Hr'g, at 1. Judge Denney presided over the hearing and Ken Gallon, a court-appointed attorney, represented Perdue at the hearing. Dkt. # 26-6, Tr. Mot. Hr'g, at 1-2. After hearing testimony from Perdue and arguments from counsel, [3] the state district court denied Perdue's motion to withdraw his plea, finding that the record from the plea hearing and the court's own recollections demonstrated that Perdue understood the consequences of his plea and was competent to enter the plea. Dkt. # 26-6, Tr. Mot. Hr'g, at 27-28. The state district court then advised Perdue that he had a right to appeal the denial of the motion to withdraw the plea as well as the judgment and sentence entered against him as the result of his no contest plea. Dkt. # 26-6, Mot. Hr'g, at 28-29.
Represented by court-appointed appellate attorney Ricki Walterscheid, Perdue filed a certiorari appeal in the Oklahoma Court of Criminal Appeals (OCCA), asserting three propositions of error. Dkt. # 25-1, Appeal Br., at 2. Perdue claimed (1) he should have been allowed to withdraw his plea because the plea was not entered knowingly, intelligently, and voluntarily, (2) he was deprived of his right to the effective assistance of plea counsel because Baker (a) did not adequately advise Perdue about the consequences of his plea and the potential sentences and (b) pressured him to enter the plea, and (3) he received an excessive sentence that should be modified. Dkt. # 25-1, Appeal Br., at 2, 16-17. In an unpublished summary opinion filed October 17, 2014, in Case No. C-2013-1147, the OCCA rejected each proposition of error, affirmed the denial of Perdue's motion to withdraw his plea, and denied his certiorari appeal. Dkt. # 25-2, OCCA Op., at 1-4. Perdue did not seek further direct review by filing a petition for writ of certiorari in the United States Supreme Court. Dkt. # 1, Pet., at 3.
Proceeding pro se, Perdue filed an application for postconviction relief in state district court on February 24, 2015. Dkt. # 26-7, O.R., at 41. In the application, Perdue raised five propositions for relief: (1) that Judge Denney had a conflict of interest and should have recused himself from Perdue's criminal case, (2) that Baker performed deficiently and prejudicially by failing to advise Perdue that he could seek Judge Denney's recusal, (3) that Baker performed deficiently and prejudicially by refusing to contest certain portions of Perdue's presentence investigation report, (4) that Baker performed deficiently and prejudicially by failing to explain the elements of endeavoring to manufacture methamphetamine to Perdue before he entered his no contest plea, and (5) that appellate counsel performed deficiently and prejudicially by failing to raise the four preceding claims on appeal. Dkt. # 26-7, O.R., at 42-49. Perdue filed a separate motion on February 24, 2015, requesting an evidentiary hearing on his ineffective assistance of trial and appellate counsel claims. Dkt. # 26-7, O.R., at 53-55.
In an order filed February 25, 2015, the state district court summarily denied Perdue's application for postconviction relief. Doc. 26-7, O.R., at 57. Perdue filed a postconviction appeal and, in an order filed April 10, 2015, in Case No. PC-2015-250, the OCCA remanded the matter to the state district court for further postconviction proceedings and preparation of an order detailing the state district court's findings of fact and conclusions of law. Dkt. # 26-7, O.R., at 67-70. On August 10, 2015, the state district court issued an order denying Perdue's request for an evidentiary hearing, setting forth findings of fact and conclusions of law, and denying Perdue's application for postconviction relief. Dkt. # 26-7, O.R., at 73-74. Following the remand, the OCCA issued an order on March 23, 2016, in Case No. PC-2015-783, affirming the denial of postconviction relief. Dkt. # 25-5, OCCA Order, at 1-5.
On January 6, 2017, Perdue filed the instant federal habeas petition (Dkt. # 1), a brief in support of the petition (Dkt. # 2), and a motion to proceed in forma pauperis (Dkt. # 3), in the United States District Court for the Western District of Oklahoma. The case was transferred to this Court on February 8, 2017. Dkt. # 9. In an order (Dkt. # 10) filed February 9, 2017, the Court denied Perdue's motion to proceed without prepayment and directed Perdue to pay the $5 filing fee on or before March 13, 2017. In an order (Dkt. # 11) filed April 24, 2017, the Court dismissed this action, without prejudice, for lack of prosecution and entered judgment against Perdue. Perdue filed a motion for relief from judgment (Dkt. # 14), on August 29, 2018. In an order (Dkt. # 16) filed August 31, 2018, the Court granted Perdue's motion, set aside the judgment, reopened the case, and reinstated the petition.
Respondent Scott Crow filed a response (Dkt. # 25) in opposition to the petition and submitted records of state court proceedings (Dkt. ## 25, 26) on December 10, 2018. Perdue filed a reply brief (Dkt. # 27) on January 2, 2019. In an order (Dkt. # 29) filed March 25, 2021, the Court took judicial notice that Perdue had been released from state custody and directed Crow to file a supplemental...
To continue reading
Request your trial