Perkins v. Tucker

• Decision Date: 31 July 2012
• Docket Number: CASE NO. 12-80199-Civ-COHN
• Parties: ALEXANDER PERKINS, Petitioner, v. KENNETH S. TUCKER, Respondent.
• Court: U.S. District Court — Southern District of Florida

ALEXANDER PERKINS, Petitioner,

v.KENNETH S. TUCKER, Respondent.

CASE NO. 12-80199-Civ-COHN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: July 31, 2012

MAGISTRATE JUDGE P. A. WHITE

REPORT OF

MAGISTRATE JUDGE

I. Introduction

Alexander Perkins, a state prisoner currently confined at the Apalachee Correctional Institution, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging the constitutionality of his convictions for robbery with a firearm and felon in possession of a firearm entered in Palm Beach County Circuit Court, case no. 00-003838CFA06.

This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

For its consideration of this petition with exhibits (DE#1), and supporting memorandum (DE#4), the Court has the response (DE#15) of the state to an order to show cause with multiple exhibits (DE#16), and the petitioner's traverse(DE#17).

II. Claims

Construing the arguments liberally as afforded pro se litigants pursuant to Haines v. Kerner, 404 U.S. 419 (1972), the petitioner raises two grounds for relief, as follows:

1. His constitutional rights were violated when the court erred by failing to instruct the jury on the petitioner's alibi defense, and counsel was ineffective for not objecting or otherwise requesting that the court instruct the jury accordingly. (DE#1:13; DE#4:1).

2. The court erred in failing to hold a full Richardson¹ hearing where the prosecution did not put petitioner on notice that a witness had identified him as a second suspect. (DE#1:16; DE#4:4).

III. Procedural History

The petitioner was charged by Amended Information with robbery with a firearm (Count 1), and felon in possession of a firearm (Count 2). (DE#16:Ex.1). It appears from the record that Count 2 was severed pretrial. (DE#16:Ex.14). The petitioner proceeded to trial on Count 1, the robbery offense, where he was found guilty as charged, following a jury verdict. (DE#16:Ex.2). On February 19, 2002, petitioner pled guilty to Count 2, and was sentenced to 634 days, time served. (DE#16:236-238).² On April 25, 2002, petitionernext appeared for sentencing as to Count 1, at which time he was adjudicated a three-time violent felony offender³ and sentenced to life in prison. (DE#16-1:9-11).

The petitioner appealed, raising the substantive claim underlying claim one, and claim two of this federal petition, as listed above. (DE#16-215:Initial Brief on Appeal). On June 25, 2003, the Fourth District Court of Appeal per curiam affirmed the convictions without written opinion. Perkins v. State, 849 So.2d 317 (Fla. 4 DCA 2003)(table); (DE#16:Ex.6).

While petitioner's direct appeal was pending, petitioner returned to the trial court filing a motion to correct illegal sentence and amendment thereto. (DE#1:Ex.E:2). With the state's agreement, the court granted the motion, and found petitioner was entitled to resentencing. (Id.). Resentencing was held on February 4, 2005, at which time petitioner was adjudicated a prison releasee reoffender and sentenced to a term of life imprisonment. (Id.). Petitioner prosecuted a direct appeal of the resentencing judgment. On September 27, 2006, the Fourth District Court of Appeal per curiam affirmed the resentencing judgment by written opinion. Perkins v. State, 939 So.2d 1113 (Fla. 4 DCA 2006); (DE#16-3:Ex.8). Rehearing was denied on November 8, 2006. Review to the Florida Supreme Court was granted, the foregoing decision quashed, and the matter remanded to the appellate court for further consideration.Perkins v. State, 7 So.3d 529 (Fla. 2009); (DE#16-4:Ex.9). On October 9, 2009, pursuant to the Florida Supreme Court's remand, the Fourth District Court of Appeal once again affirmed it's earlier decision. Perkins v. State, 17 So.3d 1289 (Fla. 4 DCA 2009); (DE#16-3:Ex.10). No rehearing was filed. Thus, since petitioner did not seek rehearing thereof, he had until November 9, 2009 to file a petition for discretionary review in the Florida Supreme Court.⁴ Consequently, for purposes of the one-year federal limitations period, petitioner's conviction became final on November 9, 2009.⁵

Before his convictions became final, the petitioner returned to the trial court filing his first motion for postconviction relief pursuant to Fla.R.Cr.P. 3.850 and amendment thereto, raising numerous claims, including the ineffective assistance portion of claim one of this federal petition, as listed above. (DE#16-3:Ex.13). Following a response from the state, the trial courtentered a detailed, 6-page order denying the motion and amendment thereto. (DE#16-3:Ex.15). That denial was subsequently per curiam affirmed without written opinion, Perkins v. State, 944 So.2d 1001), with the mandate issuing in 2006, prior to petitioner's conviction becoming final. (DE#16-3:Exs.16-17).

Again before petitioner's conviction became final on direct appeal, petitioner filed yet another Rule 3.850 in 2008, once again raising claim one of this federal petition, as listed above. (DE#16-4:Ex.18). The state filed a response thereto, arguing that this Rule 3.850 motion was procedurally barred from review as untimely and successive. (Id.). Thereafter, the trial court entered an order denying the motion based on the state's response. (Id.). That denial was subsequently per curiam affirmed without written opinion, Perkins v. State, 75 So.3d 291 (Fla. 4 DCA 2011), with the mandate issuing on January 6, 2012. (DE#16-4:Exs.19-20).

The federal limitations period commenced running less than 2 months from the issuance of the January 2012 mandate, until February 15, 2012, when the petitioner then came to this court filing the instant habeas corpus petition.⁶ (DE#1). Thus, there was less than one year, during which no state postconviction proceedings were pending.

IV. Threshold Issues

A. Statute of Limitations

In its response to the order to show cause, the respondent rightfully does not challenge the timeliness of the instantpetition. See 28 U.S.C. §2244(d)(1)-(2). The petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Consequently, post-AEDPA law governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 1664, 167 L.Ed.2d 585 (2007); Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11 Cir. 2007). As noted previously, less than one year of the federal limitations period ran during which no state court proceedings were pending. Thus, it appears that this federal petition, filed within a year from the time the petitioner's conviction became final, is timely. See Artuz v. Bennett, 531 U.S. 4 (2000) (pendency of properly-filed state postconviction proceedings tolls the AEDPA limitations period).

B. Exhaustion and Procedural Bar

The respondent, however, argues in its response to the order to show cause that the petitioner is not entitled to review on the merits of the claims because they are unexhausted, See 28 U.S.C. §2254(b)(1) and (b)(1)(A),⁷ and prospectively procedurally barred from federal habeas corpus review because they were not raised inthe state forum in federal constitutional terms.⁸

While it appears that a respondent's argument in relation to a portion of claim one and claim two appear to be meritorious, because they may not have been technically exhausted before the state courts, subjecting them to a procedural bar,⁹ or because the state court specifically applied a procedural bar, this Court need not reach this difficult question in this particular case. Since the petitioner cannot prevail on the merits of his claims, there is no need to belabor the procedural exhaustion and bar issues here.¹⁰

Although this Court acknowledges that the procedural bar issue should ordinarily be resolved first, judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated. See Lambrix v. Singletary, 520 U.S. 518 (1997). See also Barrett v. Acevedo, 169 F.3d 1155, 1162 (8 Cir. 1999)(statingthat judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner and the procedural bar issues are complicated), cert. denied, 528 U.S. 846 (1999); Chambers v. Bowersox, 157 F.3d 560, 564 n. 4 (8 Cir. 1998)(stating that "[t]he simplest way to decide a case is often the best.").

V. Facts Adduced at Trial

Given the nature of the claims raised herein, a recitation of the facts adduced at trial is essential.¹¹ Rodmodico Rodriguez,¹² the owner of Wash Bowl, a laundromat in Belle Glade, Florida, testified that on April 5, 2002, when he got to the business, he observed Carlos Verdugo and petitioner inside the laundromat. (T.246-47). Two masked men entered the business, and approached the petitioner and Verdugo. (Id.). Shortly thereafter, a gun was placed on Rodriguez' head, and as Rodriguez was beaten by his assailants, they demanded his money, ring and cellular phone, which he turned over to them. (T.255-258). Rodriguez and Gloria, his employee, were eventually pushed to the floor. (Id.). Rodriguez also recalled he and Gloria were later shoved into a bathroom, at which time he heard a single gunshot, which he claims passed very close to his forehead. (T.259-60). After being hit three times, Rodriguez eventually grabbed a level device and ran after the suspects,breaking the rear glass of the suspects' vehicle, as they were getting in. (T.262-63). Rodriguez testified at trial that petitioner was not one of the masked individuals. (T.273-75).

During a side bar conference, petitioner's counsel argued against an in-court identification of petitioner, preserving the defense's prior argument during a motion to suppress, and arguing further...