Perkins v. Warren

• Decision Date: 16 April 2014
• Docket Number: Civil No. 11-6264 (JLL)
• Parties: SHIRLEY PERKINS, Petitioner, v. CHARLES WARREN, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

SHIRLEY PERKINS, Petitioner, v. CHARLES WARREN, et al., Respondents.

Civil No. 11-6264 (JLL)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: April 16, 2014

NOT FOR PUBLICATION

OPINION

LINARES, DISTRICT JUDGE

Petitioner Shirley Perkins ("Petitioner"), a prisoner currently confined at Edna Mahan Correctional Facility in Clinton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the petition will be denied.

I. BACKGROUND

This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)¹, will recount salient portions of the recitation of facts as set forth by Superior Court of New Jersey on direct appeal:

On May 28, 2002, defendant and another woman, April Williams, were at Murphy's Tavern. On that occasion Shelton, another frequent patron of the establishment, left her pocketbook there. The pocketbook contained Shelton's cell phone. Either defendant or Williams took the pocketbook and emptied its contents, including the cell phone. The cell phone then came into the possession of Williams' who began using it.

About two months later, Shelton called her own cell phone number. She reached Williams, informed Williams that she was the owner of the cell phone, anddemanded it back. Williams told Shelton that she would return the phone the next time the two of them saw one another.

The anticipated encounter between Shelton and Williams occurred at Murphy's Tavern on the night of August 1, 2002. Defendant also was present at the bar. The encounter sparked an argument, which escalated and spilled out onto the street, and concluded with Shelton being stabbed and left on the ground. Shelton was pronounced dead at 1:23 a.m. the following morning.

The State presented testimony concerning these events from Williams, five other eyewitnesses who had been at Murphy's Tavern the night of August 1, 2002, seven law enforcement officers who had responded to the scene or who otherwise investigated the incident, and the county assistant medical examiner who had performed the autopsy on the victim. Their testimony supported the State's contention that defendant had stabbed Shelton without justification.

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April Williams also testified for the State. She admitted that she had been at Murphy's Tavern on August 1, 2002 with defendant, and that there had been a fight over Shelton's cell phone. Williams denied, however, having carried a knife with her that evening. Instead, she claimed that defendant had brought a knife with her because she had had a fight at the bar in the preceding week. Although Williams contends she never actually saw the knife, she testified that she was aware defendant was carrying one near the small of her back.

Williams denied seeing the stabbing. She contended that while the stabbing was taking place, she had been fighting with Shelton's friend Johnson. When Williams was pulled off of Johnson, she heard defendant say to Johnson, "You shouldn't ask me [any] motherf* *king questions." As defendant and Williams were walking away, two men tried to stop them. Williams hit one of the men with a crate. Williams recalled that defendant then sprayed mace at the males, which she had taken out of Williams' purse. Williams and defendant then attempted to board a bus when the police arrived.

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Defendant testified on her own behalf at trial. She also presented two other witnesses: her daughter Shakira Green and a bystander at the scene of the stabbing, Wanda Wilson.

In her testimony, defendant claimed that Williams had stolen Shelton's pocketbook in May 2002 and had taken possession of Shelton's cell phone. Subsequently, on the evening of August 1, 2002, defendant went to Murphy's Tavern, along with April Williams and two friends named Lisa and Cassandra. According to defendant, the four of them arrived at the tavern at about 10:45 p.m. Defendantacknowledged that she was wearing white shorts and a tank top, covered by a purple jersey. She did not deny, or offer competing proof regarding, the State's contention that her hair that day was red. However, defendant denied that she was carrying a knife or that she had known that Williams was carrying a knife.

According to defendant, she was dancing at the tavern when she was approached by Shelton. Shelton supposedly asked defendant to go outside and speak with "Tiny," also known as Karemiah Johnson. Defendant had known Johnson for about thirty years. The two of them went outside, along with Williams. Johnson then allegedly started to argue with defendant about the stolen cell phone.

Defendant testified that she had initially attempted to walk away from Johnson. However, Johnson then "snuck hit" Williams, causing Williams to retaliate. As Johnson and Williams continued fighting, Shelton allegedly joined the fray to assist Johnson, who was her close friend. Defendant testified that she also entered the fight, out of a desire to protect Williams. For the next half hour or so, the four women, and several others who joined in, intermittently argued and traded blows. In the meantime, a crowd of observers gathered.

Defendant testified that eventually she saw Williams pull a knife out of her pocketbook and stab Shelton. Defendant contended that she then took the knife from Williams because she was afraid that Williams, the mother of two of her grandchildren, would get into trouble. Defendant asserted that she passed the knife onto Cassandra and told her to dispose of it. Defendant then attempted to flee from the scene with Williams.

On cross-examination, defendant denied screaming "Die, b* * *h, die" or any other words in the direction of Shelton. Rather, defendant insisted it was Williams who had been screaming "f* *k, you b* * *h, you [weren't] going to get your phone" at Shelton. Defendant maintained that she herself had only been screaming at Williams, because she was upset with her.

State v. Perkins, 2007 WL 1261308, at * 1-4 (N.J. Super. Ct. App. Div. May 2, 2007).

A jury found Petitioner not guilty of murder, but convicted her on the lesser-included offense of passion/provocation manslaughter. Perkins, 2007 WL 1261308, at * 5. The jury also convicted Petitioner of two offenses for unlawful possession of a weapon. Id. At the time of sentencing, the judge granted the State's motion for an extended term, pursuant to N.J.S.A. 2C:44-3a, based on Petitioner's status as a persistent offender. Id. Given her extensive prior record, the court sentenced Petitioner to a fifteen-year term on the manslaughter conviction and aconcurrent five-year term on the weapons offenses. Id. Petitioner filed an appeal and the Appellate Division remanded the case for resentencing to merge the weapons offenses into the manslaughter conviction, and also to comply with recent case law concerning the formerly-applicable presumptive sentencing guidelines. Id. The New Jersey Supreme Court denied certification. State v. Perkins, 927 A.2d 1292 (N.J. 2007). On remand, the trial court merged the weapons offenses but reimposed the original sentence of a fifteen-year extended term on the manslaughter conviction, subject to an eighty-five percent parole disqualifier under N.J.S.A. 2C:43-7.2(a). State v. Perkins, 2010 WL 5418146 (N.J. Super. Ct. App. Div. Nov. 17, 2010). Petitioner filed a petition for post-conviction relief ("PCR"), which was denied by the trial court and said denial was affirmed by the Appellate Division. Id. The New Jersey Supreme Court denied certification. State v. Perkins, 17 A.3d 1245 (N.J. 2011).

In October 2011, Petitioner filed the instant habeas petition. (ECF No. 1.) She raises the following grounds for relief:

GROUND ONE: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE CHARGE OF MURDER EMBODIED IN COUNT I THEREBY NECESSARILY TAINTING THE JURYS VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER ARISING THEREFROM

GROUND TWO: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT CLEARLY INADMISSIBLE HEARSAY TESTIMONY FROM POLICE OFFICER WHICH IDENTIFIED THE DEFENDANT AS THE ALLEGED PERPETRATOR

GROUND THREE: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S IMPROPER QUESTIONING OF HER CONVEYING THE IMPRESSION THE PROSECUTOR POSSESSED INFORMATION INDICATING THE DEFENDANT INTENTIONALLY WENT TO THE SCENE TO ASSAULT THE VICTM

GROUND FOUR: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR

TRIAL AS RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ELICITING HER PRIOR CRIMINAL RECORD AFTER IT HAD BEEN FULLY DISCLOSED BY DEFENSE COUNSEL DURING DIRECT EXAMINATION

GROUND FIVE: THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM ELICITING TESTIMONY ADVERSELY IMPACTING UPON THE CREDIBILITY OF APRIL WILLIAMS

GROUND SIX: TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBTAINING APRIL WILLIAMS' CLOTHES AND NOT SUBJECTING THEM TO DNA TESTING AND THE FAILURE TO RAISE THE ISSUE ABOUT THE POLICE LACK OF TESTING OF APRIL WILLIAMS' CLOTHING FOR THE VICTIM'S BLOOD.

GROUND SEVEN: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY CROSS-EXAMINE A KEY STATE WITNESS APRIL WILLIAMS, ABOUT THE REASONS WHY SHE WAS TESTIFYING FOR THE STATE.

(Pet. ¶ 12.)² After receiving notice pursuant to Mason v. Meyers, 208 F. 3d 414 (3d Cir. 2000) (ECF No. 2), Petitioner indicated that she wished to proceed with her petition "as-is" (ECF No. 4) and the Court entered an Order to Answer (ECF No. 5). Respondents filed their Answer on March 13, 2013. (ECF No. 15.)

II. DISCUSSION

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the

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