Perkins v. Capra, 14-cv-5260 (ENV)
| Decision Date | 06 December 2018 |
| Docket Number | 14-cv-5260 (ENV) |
| Parties | NAYSHAWN PERKINS, Petitioner, v. MICHAEL CAPRA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
VITALIANO, D.J.
Pursuant to 28 U.S.C. § 2254, Nayshawn Perkins filed this habeas corpus petition, pro se, following his conviction, in 2005, of second degree attempted murder and first degree robbery. Pet. (ECF No. 1). His petition raises a not unusual assortment of attacks. For the reasons set forth below, the writ is denied and the petition is dismissed.
Perkins was tried in Kings County Supreme Court, in May 2005, before Justice Anne G. Feldman and a jury. State Ct. R. at 596 (ECF No. 8) ("R.").1 In their opening statement, the People fairly and accurately forecasted the evidence that would be presented to the jury. In shorthand summary, the facts set forth here are cited primarily to the prosecutor's opening statement. They are viewed in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citing United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008)).
On Halloween 2002, Gibents Jeudy was working as a cashier at Fashion Hut, a store inBrooklyn. R. at 616. Juan Guillen, the store's owner, was working in an adjacent office. Id. At approximately 11:20 AM, Edward Vaden parked his car outside Fashion Hut and entered the store. Id. Shortly thereafter, Perkins arrived. Id. Jeudy buzzed him into the store because he recognized him from prior visits. Id. Once he entered the store, Perkins pulled out a gun and announced a robbery. Id. at 617. While Vaden and two other gunmen canvassed the store in search of merchandise, Perkins pointed his gun at Jeudy and told him to open the cash register. Id. When Jeudy failed to comply, Perkins ordered him, at gunpoint, to lie face down on the floor. Id. Now lying on the floor, Jeudy heard a noise that made his head flinch. Id. at 617-18. At that moment, a bullet grazed the side of his skull. Id. at 618. Remarkably, this prompted Jeudy to jump to his feet and grab the barrel of the gun petitioner was holding. Id. During the ensuing struggle, Vaden came to the aid of Perkins and kicked Jeudy in the chest, knocking him again to the floor. Id. Jeudy lay on the floor looking upward, at which time he saw Perkins stand over him and fire two bullets into his chest. Id.
Guillen reacted to the sound of the gunshots by running out of his office and onto the street. Id. He saw Vaden's car, which was double-parked, with the engine still running but nobody in the driver's seat. Id. at 619. He jumped into the car, put it into reverse, and drove it down the block backwards. Id. While sitting in the car, Guillen observed four robbers exiting the store with plastic bags full of Fashion Hut merchandise. Id. Seeing Guillen in their getaway car, the robbers turned and ran down the street in the opposite direction, dropping one of the plastic bags. Id.
As the robbers staged their escape, a woman still inside the store called the police, who arrived within minutes. Id. They took Jeudy to Brookdale Hospital, where he was treated for several gunshot wounds. Id. at 619-20. The Crime Scene Unit was called to Fashion Hut andbegan searching for forensic and other evidence. Id. at 620. They collected the plastic bag that had been dropped to the sidewalk in search of fingerprints. Id. Testing would later match the latent prints to petitioner's. Id. at 622.
Eleven days after the robbery, on November 11, 2002, Vaden surrendered to the police, and a manhunt for Perkins began. Id. at 620. Perkins would be found hiding in his mother's home, where he was taken into custody three months after the crime, on February 3, 2003. Id. To confirm Perkins's identity as one of the robbers, the police attempted to put him in a lineup, along with five lineup fillers who physically resembled him. Id. at 620-21. Jeudy went to the police station to view the lineup, but Perkins refused to comply with the procedure, spitting and cursing at the detective, putting his head between his legs, and refusing to face the viewing window. Id. at 621.
Unable to use their standard lineup procedure, detectives chose to use a photographic lineup, placing a photograph of Perkins alongside photographs of the same five fillers. Id. Presented with this array, Jeudy picked out petitioner's photograph, identifying him as the shooter and as one of the robbers. Id. Perkins was then formally arrested and soon indicted. Id. He would subsequently cooperate with a second lineup, with defense counsel present, and Jeudy would again identify him as the person who shot him point blank and robbed the store on October 31, 2002. Id. at 622. At trial, the People would call Jeudy and a variety of witnesses, all corroborated by forensic evidence.
Trial counsel for petitioner, as would be expected, sought to challenge the credibility of the People's witnesses, especially Jeudy, who had related his horrific victim's tale. The defense also called a single witness of its own: Detective Jay Poggi, who was one of the officers who hadresponded to the robbery, presumably in the hope that a slightly different story might sow some doubt.
In his summation, Perkins's lawyer again sought to impugn the People's witnesses and the believability of their case, but to no avail. The jury found Perkins guilty of attempted murder in the second degree and robbery in the first degree. Id. at 1157. On June 14, 2005, Justice Feldman sentenced Perkins, as a second felony offender, to concurrent terms of imprisonment of 25 years for attempted murder and ten years for robbery. Id. at 1179.
Petitioner appealed his conviction to the Appellate Division, Second Department. Id. at 62. His lawyer on appeal raised several claims, arguing (1) that the photographic array identification was unlawful, (2) that trial counsel was ineffective, (3) that a detective was improperly allowed to testify to petitioner's prior arrest history, and (4) that a prosecutor's comment during his summation deprived petitioner of a fair trial. Id. at 85, 101. The Appellate Division affirmed. People v. Perkins, 61 A.D.3d 780, 876 N.Y.S.2d 517 (2d Dep't 2009). It held that Perkins's frustration of the attempted lineup justified use of a photo array lineup, that his trial counsel was not ineffective, and that the remaining claims were unpreserved for appellate review. Id.
Perkins would then be granted relatively rare leave to appeal to the New York Court of Appeals. People v. Perkins, 13 N.Y.3d 748, 914 N.E.2d 1020, 886 N.Y.S.2d 102 (2009). Before the high court, his assigned counsel challenged only the identification by photographic array. R. at 175. This argument did not carry the day, and the convictions were, once again, affirmed. People v. Perkins, 15 N.Y.3d 200, 932 N.E.2d 523, 906 N.Y.S.2d 523 (2010).
Now pro se, Perkins sought habeas relief here. Pet., Perkins v. Bradt, No. 10-cv-3955(ENV) (E.D.N.Y. Aug. 25, 2010) (ECF No. 1). He subsequently moved to stay the proceedings so that he might exhaust additional claims in state court. The Court denied this motion and dismissed the petition without prejudice to refiling after exhausting state remedies. Perkins v. Racetti, No. 10-cv-3955 (ENV) (E.D.N.Y. Jul. 15, 2011).
A variety of additional state court proceedings would ensue. Now pro se in state court as well, Perkins applied for a writ of error coram nobis in the Appellate Division, asserting that appellate counsel had been ineffective. R. at 1185-1200. Relief was denied. People v. Perkins, 88 A.D.3d 820, 930 N.Y.S.2d 891 (2d Dep't 2011). His subsequent petition for leave to appeal to the Court of Appeals was also denied. People v. Perkins, 18 N.Y.3d 885, 963 N.E.2d 132, 939 N.Y.S.2d 755 (2012). He next moved, under New York Criminal Procedure Law § 440.20 ("CPL"), to be resentenced, on the ground that the trial judge had failed to pronounce the post-release supervision component of his sentence. See People v. Perkins, 116 A.D.3d 716, 983 N.Y.S.2d 732 (2d Dep't 2014). The People did not oppose the motion, and, on June 8, 2012, Perkins was resentenced. See id. He then appealed from the resentence, but the Second Department again affirmed. Id. A subsequent application for leave to appeal to the high court was denied. People v. Perkins, 23 N.Y.3d 966, 11 N.E.3d 724, 988 N.Y.S.2d 574 (2014). Perkins next moved, pursuant to CPL § 440.10, to vacate the judgment of conviction, arguing that the trial court lacked subject matter jurisdiction. R. at 1209-18. Supreme Court denied the motion and his request for rehearing. Id at 1241-42. His state court efforts ended there, and his renewed federal habeas proceeding followed.
Post-conviction federal habeas relief is dominated by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), which providesthat a writ of habeas corpus shall not issue with respect to any claim of a prisoner in state custody that was adjudicated on the merits in state court unless the state court's decision (1) "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) "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d); see also Fischer v. Smith, 780 F.3d 556, 560 (2d Cir. 2015) (). Such deferential review applies whenever a state court disposes of a state prisoner's federal claim on the merits, regardless of whether that court gives reasons for its determination or refers to federal law in its decision. Harrington v. Richter, 562 U.S. 86, 98-99, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011); see also Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
"Section 2254(d) reflects the view [of Congress] that habeas corpus is a...
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