Perkins v. Herbert

• Decision Date: 23 February 2010
• Docket Number: Docket No. 08-1490-pr.
• Citation: 596 F.3d 161
• Parties: Victor PERKINS, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

596 F.3d 161

Victor PERKINS, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.

Docket No. 08-1490-pr.

United States Court of Appeals, Second Circuit.

Argued June 23, 2009.

Decided February 23, 2010.

Julia Pamela Heit, Esq., New York, NY, for Petitioner-Appellee.

Michael C. Green, Esq., District Attorney for Monroe County, Kelly Christine Wolford, Esq., Assistant District Attorney, Rochester, NY, for Respondent-Appellant.

Before: MINER and LIVINGSTON, Circuit Judges, and TRAGER, District Judge.^*

TRAGER, District Judge.

On March 27, 1998, a Grand Jury charged Petitioner Victor Perkins ("Perkins") with one count of first degree robbery (N.Y. Penal Law § 160.15(4)), two counts of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), two counts of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)), and one count of unlawful imprisonment in the first degree (N.Y. Penal Law § 135.10). All counts stemmed from the robbery and detention of a grocery clerk named Claudia Cruz ("Cruz").

Perkins was tried and convicted of first degree robbery and two counts of weapons possession in the third degree. However, the jury acquitted Perkins of the unlawful imprisonment charge, as well as the two counts of weapons possession in the second degree. The trial court sentenced Perkins as a second violent felony offender to concurrent prison terms, the longest of which was a term of twenty years.

Perkins appealed his conviction to the New York State Supreme Court, Appellate Division ("Appellate Division"), claiming that the trial court had violated his rights under the Confrontation Clause by admitting the Grand Jury testimony and supporting depositions of Cruz without affording him the ability to cross-examine her at a pre-trial hearing or at trial. Perkins further argued that his Fifth Amendment rights had been violated by the introduction of a written confession that had been obtained after he invoked his right to silence. The Appellate Division accepted Perkins's argument that his constitutional rights had been violated in both instances, but nonetheless upheld his conviction on the ground that the constitutional errors had been "harmless beyond a reasonable doubt" in light of the other evidence presented at trial. People v. Perkins, 289 A.D.2d 940, 941, 735 N.Y.S.2d 273, 275 (4th Dep't 2001) ("Perkins II"), lv. denied, 98 N.Y.2d 654, 745 N.Y.S.2d 513, 772 N.E.2d 616 (2002).

Perkins subsequently filed this petition for a writ of habeas corpus, seeking to have the district court set aside his conviction. Respondent Victor Herbert ("Herbert"), Superintendent of the Attica Correctional Facility, opposed Perkins's petition. The United States District Court for the Western District of New York (Victor E. Bianchini, U.S.M.J.),¹ however, conditionally granted the writ of habeas corpus pursuant to 28 U.S.C. § 2254, setting aside Perkins's conviction for robbery and weapons possession. Perkins v. Herbert, 537 F.Supp.2d 481, 506 (W.D.N.Y.2008) ("Perkins III"). According to the magistrate judge, the constitutional errors had not been harmless under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Perkins III, 537 F.Supp.2d at 502 (citing Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007)). We disagree with this last ruling and reverse the grant of the writ.

Background

(1)

Factual Background

On February 26, 1998, at approximately 10:05 a.m., Perkins and another man named Ernesto Shannon, a.k.a. "Lucky" ("Lucky"), entered Willie's Grocery Store in the City of Rochester. According to an oral statement by Perkins, a third man, named Ted Francis ("Ted"), stood outside the grocery store acting as a lookout. After demanding Cruz's jewelry and the money from the register, the two men forced Cruz to help them contact a man named Luis Rijo, a.k.a. "Hector" ("Hector"), a local drug dealer with whom Cruz was acquainted. Perkins then paged Hector from a nearby telephone booth with the number "335," knowing that Cruz would sometimes use this number to summon Hector to the grocery store.

Once Hector arrived at the front door, Perkins and Lucky forced Cruz to participate in his capture. According to testimony from Cruz, as well as a written confession from Perkins, the two men forced Cruz to meet Hector at the front door and persuade him to use the rear entrance instead. After Hector had approached the rear entrance, Cruz coaxed Hector into the store. However, soon after Hector entered, he was ambushed by Lucky and taken into the basement, where he was blindfolded, duct-taped to a chair and beaten. Lucky then threatened Hector with a semiautomatic pistol and demanded to know where Hector kept his drugs and money.²

Under duress, Hector relented. He spoke to the two men in Spanish, which Cruz translated, revealing that his drugs and money were located in the attic of a nearby house at 295 Avenue C. At this point, one of the two men left the grocery store in search of Hector's drugs and money.³ However, that person soon returned to the grocery store, where the two men questioned Hector once more. Hector once again reassured the two men that he had told them the truth regarding the location of his drugs and money, and Lucky subsequently exited Willie's Grocery Store. Perkins, however, remained behind with Cruz and Hector.

While the men were struggling to locate Hector's drugs and money, the police had received reports of suspicious activity and shouting coming from Willie's Grocery Store. In response to these reports, the police contacted the owner, who unlocked the store. Upon entering the basement, the officers encountered Cruz, who appeared distraught, and Hector, who was duct taped to a chair and bleeding from the head. Although she was crying, and her hands were trembling, Cruz pointed in Perkins's direction and said: "[H]e's over there." When the officers looked in this direction, they saw Perkins fleeing through the rear entrance. Officer Mark Barna ("Officer Barna"), who had been waiting outside the rear entrance, observed Perkins fleeing the grocery store and called out a radio broadcast with Perkins's description.

Shortly after receiving Officer Barna's broadcast, Officer Richard Gerbino ("Officer Gerbino") apprehended Perkins. Officer Gerbino's search revealed that Perkins was carrying a gun holster, $78.60 in cash, and numerous pieces of jewelry that would later be identified as belonging to Cruz. Officer Gerbino then brought Perkins back to the grocery store for a show-up identification by Cruz, who hesitated at first, but ultimately recognized Perkins as the man who had robbed her. Perkins then asked the officers if they caught "the other guy" and offered to cooperate, stating his desire not to go to prison.

At the police station, Investigators Thomas Baccanti and Michael McAuliffe ("Inv. Baccanti" and "Inv. McAuliffe") read Perkins his Miranda warnings, which Perkins agreed to waive. Perkins initially denied that he had participated in the robbery or possessed a gun. Inv. Baccanti, however, told Perkins that he did not believe this to be true, and that Cruz had already implicated Perkins in the robbery. After making this comment, Inv. Baccanti stated: "What really happened was you pointed a gun at her, at Claudia Cruz, and you took her money and jewelry . . . that's the way it happened, isn't it?" Perkins responded, "[Y]es, that's the way it happened." Perkins also admitted to possessing a gun, and to accidentally discharging it while he was fleeing from the police. However, when Inv. Baccanti requested that Perkins reduce his statement to writing, Perkins refused. Perkins also indicated that he did not wish to discuss the matter any further, thus ending the interrogation. Perkins again refused to discuss the matter two and a half hours later, at 7:00 p.m., when the investigators attempted to re-initiate the conversation.

After waiting in the interview room by himself until 12:30 a.m., Perkins met with Investigators Thomas Janus and Glenn Weather ("Inv. Janus" and "Inv. Weather"). Inv. Janus and Inv. Weather had been investigating a homicide that had occurred earlier that day at 295 Avenue C, the same site that Lucky had visited in search of Hector's drugs and money. Unaware that Perkins had earlier invoked his right to remain silent, Inv. Weather said to Perkins: "Victor, I realize that you have been-you have been read your rights and you agreed to waive them. They still stand here during the conversation we're having now and that we're going to be having over the next few minutes." Perkins replied, "[Y]eah, no problem."

The two investigators informed Perkins that they wished to discuss what had happened earlier that day, as well as a homicide that had occurred at 295 Avenue C. Under questioning about the robbery at Willie's Grocery Store, and its potential connection to the homicide at 295 Avenue C, Perkins produced a written statement detailing his involvement in the robbery of Cruz and the plot to steal Hector's drugs and money.⁴ According to Perkins's written statement, he had personally taken Cruz's chains, ring, and gold watch at gunpoint. However, Perkins also claimed that he had not visited 295 Avenue C on the date of the robbery. Instead, Perkins claimed in his written statement that Lucky was the only one to visit 295 Avenue C in search of Hector's drugs and money.

Approximately one month after the robbery, on March 29, 1998, the police discovered that Perkins's accomplice Lucky had been the victim of a homicide as well. The police suspected that Ted, whom Perkins had identified as the lookout in the initial robbery, had either participated in, or had knowledge of, Lucky's death. Furthermore, the police learned that Ted had personally approached Cruz on one occasion, reminding her of Lucky's homicide and warning her not to...