Pericles v. United States
| Decision Date | 28 May 2014 |
| Docket Number | No. 12-14505,D.C. Docket No. 1:10-cv-24022-WMH,D.C. Docket No. 1:09-cr-20324-WMH-1,12-14505 |
| Parties | MICHAEL PERICLES, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeal from the United States District Court
for the Southern District of Florida
Before HULL, BLACK and FARRIS,* Circuit Judges.
Petitioner-appellant Michael Pericles appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Aftercareful review of the record and the briefs, and with the benefit of oral argument, we affirm.
On April 1, 2009, Officers Luis Cerra and David Segovia of the Miami-Dade Police Department were on patrol when they learned of an incident at a residence located at 345 NW 59th Terrace. Officers Cerra and Segovia went to that residence, and there observed rustling in the bushes, as though someone were running through the bushes on the east side of the house. Officer Cerra "immediately went to the west side of the house to try to cut that person or persons off, at the rear of the house." Officer Cerra entered the backyard of an adjacent house and climbed on to a push cart leaned against a wooden fence. From that vantage point, he could see into the backyard of 345 NW 59th Terrace.
Officer Cerra observed "a black male come . . . running from the east side of the house onto the rear of the back." Officer Cerra later determined that this man was Pericles. Pericles had a green bag in his hand. Upon entering the backyard, Pericles partially hid the bag underneath a tarp and then went to the rear entrance of the residence.
As Pericles was about to enter the residence, Officer Cerra drew his gun and said, "police, don't go in the house; let me see your hands." Pericles made eyecontact with Officer Cerra and then fumbled with an L-shaped object in his waistband. The object fell to the ground, making the noise of metal hitting concrete. Pericles then entered the residence.
After Pericles did so, Officer Cerra climbed over the wooden fence and into the backyard. Once in the backyard, he observed that the L-shaped object was "a black handgun." Officer Cerra also conducted a safety sweep of the backyard, during which he discovered: (1) a loaded AK-47 magazine clip sitting on top of the tarp, containing 29 rounds of ammunition; (2) three assault rifles (two AK-47 rifles and one SKS rifle), located in the green bag that Pericles had hidden underneath the tarp; and (3) another round of AK-47 ammunition, also in the green bag.
Pericles was arrested that day. A few weeks later, a federal grand jury indicted him for one count of possessing firearms and ammunition after being convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1). The district court appointed a federal public defender to represent Pericles. Pericles pleaded not guilty, and proceeded to trial.
At trial, Pericles did not contest that he had previously been convicted of a felony offense. The government's evidence showed that Pericles was convicted in2005 of "[f]irearm weapon possession by a convicted felon."1 During the government's case, Officer Cerra testified to the events described above and identified Pericles as the individual he observed in the backyard on April 1.
Pericles's defense was that he was not in the backyard on April 1 and that he did not possess the weapons found there. Pericles did not testify. One of his witnesses testified that Pericles was inside the residence when the police arrived, that Pericles never went into the backyard, and that he had never seen Pericles with a bag or with a gun.
After hearing this evidence, the jury found Pericles guilty.
Afterwards, Pericles, through counsel, filed a post-trial motion for a judgment of acquittal or for a new trial. In a supplement to that motion, Pericles's attorney informed the district court that after trial, "[o]n August 14, 2009, a polygraph examination was conducted . . . of Michael Pericles regarding the pertinent issues of the case."
The polygraph report showed that the examiner asked Pericles the following questions: (1) "Did you hide a green bag with assault rifles under a tarp in the backyard of 345 N.W. 59th Terrace, on April 1, 2009?" (2) "Did you put a green bag with assault rifles under a tarp and drop a handgun on the ground at 345 N.W.59th Terrace, on April 1, 2009?" and (3) "Were you involved in any way in hiding a bag with assault rifles under a tarp and dropping a gun from your waistband on April 1, 2009?" Pericles answered "No" to each of these questions, and the polygraph examiner reported that there was a 91.3 percent chance Pericles answered these questions truthfully.
The district court denied the motion, concluding that the polygraph test results were not "newly discovered evidence warranting a new trial," because the results "almost certainly would have been inadmissible." The district court pointed out that: (1) "there was no stipulation by the parties" as to the admissibility of polygraph evidence; (2) "Pericles did not testify, so the results could not have been used to corroborate his story" and (3) "the nature and phrasing of the polygraph questions would have raised serious questions about their admissibility."
Pericles's presentence investigation report ("PSI") set forth a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1). Pericles received a two-level increase because his offense involved between three and seven firearms, see id. § 2K2.1(b)(1)(A), resulting in a total offense level of 28.
Pericles's criminal history score of 13 resulted in a criminal history category of VI. Pericles's scored offenses included, among other offenses: (1) a 2001 state conviction for possession of cocaine; (2) a 2001 state felony conviction for sellingcannabis within 1,000 feet of a high school; (3) a 2005 state felony conviction for unlawful possession of a firearm by a convicted felon; and (4) 2005 state felony convictions for battery on a law enforcement officer and resisting an officer with violence. Pericles's offense level of 28 and criminal history of VI yielded an advisory guidelines range of 140 to 175 months' imprisonment; but, the statutory maximum sentence for Pericles's offense was 120 months. See 18 U.S.C. § 924(a)(2). Thus, Pericles's guidelines range became 120 months. See U.S.S.G. § 5G1.1(a).
Pericles objected to the PSI's determination of his base offense level.2 He also argued that the district court should sentence him below the guidelines range in light of "the unique circumstances of this case, among other things, the incident that lead to his arrest and the polygraph examination submitted to the court."
At sentencing, the district court heard expert testimony about Pericles's polygraph test. The district court imposed a sentence of 96 months' imprisonment, which was 24 months below the guidelines range of 120 months. The district court announced that it was overruling Pericles's objection to the base offense level. The district court stated that the polygraph examiner's testimony did not persuade the court.
Pericles timely filed a notice of appeal. On direct appeal, this Court affirmed Pericles's conviction and sentence. See United States v. Pericles, 382 F. App'x 801 (11th Cir. 2010). Pericles raised one issue on direct appeal that was related to the issues in this § 2255 proceeding.3 Specifically, Pericles argued that the district court erred in denying his motion for a new trial based in part on the polygraph test results. Id. at 805.
On this issue, we first stated that "[w]e have restricted the use of polygraph evidence to only two contexts: (1) when the parties stipulate in advance as to the test's circumstances and the scope of its admissibility, or (2) 'to impeach or corroborate the testimony of a witness at trial.'" Id. at 806 (quoting United States v. Piccinonna, 885 F.2d 1529, 1535-36 (11th Cir. 1989) (en banc)). We also noted that one of the requirements for a new trial based on newly discovered evidence is that "the evidence was of such a nature that a new trial would probably produce a new result." Id. (quotation marks omitted); see United States v. Starrett, 55 F.3d1525, 1554 (11th Cir. 1995) ().
After reciting that law, we found no abuse of discretion in the district court's denial of Pericles's motion for a new trial. Given the polygraph test results would be inadmissible, the results did not meet the standard for a new trial based on newly discovered evidence. See id. ().
In 2010, Pericles filed a pro se motion to vacate his sentence under § 2255 asserting seven claims of ineffective assistance of counsel. Without conducting an evidentiary hearing, a magistrate judge issued a report and recommendation ("R&R") recommending that the district court deny Pericles's motion. Pericles objected to the R&R, but the district court adopted the magistrate judge's recommendations.
Pericles filed in this court a pro se notice of appeal, and this Court granted him a certificate of appealability ("COA") as to whether the district court erred in determining without an evidentiary hearing that Pericles's attorney was not ineffective by failing to: (1) "review Pericles's criminal history before advisinghim regarding whether to enter a plea or stand trial"; (2) "arrange for Pericles to take a polygraph examination prior to trial"; or (3) "properly advise Pericles regarding his right to...
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