Perry v. Hall

• Decision Date: 17 March 2020
• Docket Number: No. 1:19CV29-SA-JMV,1:19CV29-SA-JMV
• Parties: TIMOTHY PERRY PETITIONER v. PELICIA HALL, ET AL. RESPONDENTS
• Court: U.S. District Court — Northern District of Mississippi

TIMOTHY PERRY PETITIONER v. PELICIA HALL, ET AL. RESPONDENTS

No. 1:19CV29-SA-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION

March 17, 2020

MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Timothy Perry for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition; Perry has responded, and the State has replied. The matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted, and the instant petition will be dismissed both for failure to state a claim upon which relief could be granted and as untimely filed.

Habeas Corpus Relief Under 28 U.S.C. § 2254

The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is "perhaps the most important writ known to the constitutional law of England," Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the 1948 Judicial Code. The recodification of that year set out important procedural limitations and additional procedural changes were added in 1966. The scope of the writ, insofar as the statutory language is concerned, remained essentially the same, however, until 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners and setting out special, new habeas corpus procedures for capital cases. The changes made by the 1996 legislation are the end product of decades of debate about habeas corpus.

Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of the federal Constitution or laws, permitting a federal court to order the discharge of any person held by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S. Ct. 582, 588, 59 L. Ed. 969 (1915).

Facts and Procedural Posture

Timothy Perry was convicted of sexual battery against his stepdaughter in the Leflore County Circuit Court. He was sentenced on November 20, 2002, to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections ("MDOC"). See Exhibit A.¹ On direct appeal, the Mississippi Court of Appeals affirmed Perry's conviction and sentence in a written opinion. See Exhibit B. Perry v. State, 904 So. 2d 1122 (Miss. Ct. App. 2004) (Cause No. 2003-KA-00408-COA). Perry then sought post-conviction relief based upon various allegations of ineffective assistance of trial counsel, which the Mississippi Supreme Court denied on June 29, 2005. See Exhibit C; see also State Court Record ("SCR"), Cause No. 2005-M-00880. The Mississippi Supreme Court further found that Perry's claims of newly discovered evidence were without merit. See Exhibit C. The "newly discovered evidence" was the allegation that his ex-wife had accused her new husband of sexual battery, as well. Doc. 13-7 at 7.

On April 24, 2009, Perry filed a second pro se "Application for Leave to Proceed in the Trial Court," challenging his indictment and asserting a claim based on "newly discovered evidence" that hisaccuser, his ex-wife, recently accused her current husband of a similar offense. See SCR, Cause No. 2005-M-00880. On June 3, 2009, the Mississippi Supreme Court dismissed in part and denied in part Perry's application, "find[ing] that Perry's claims other than the claim of newly discovered evidence [we]re procedurally barred." See Exhibit D. The Mississippi Supreme Court further found that Perry's "claim of newly discovered evidence [wa]s without merit." See id.

On February 7, 2011, Perry filed a third pro se "Application for Leave to Proceed in the Trial Court," which was docketed in Mississippi Supreme Court Cause Number 2011-M-00194. In his third application, Perry asserted that he was "entitled to a lesser-included jury instruction of fondling" and again raised various claims challenging his indictment. See SCR, Cause No. 2011-M-00194. By Order filed on March 3, 2011, the Mississippi Supreme Court dismissed Perry's application as untimely - and barred as a successive writ. See Exhibit E (citing Miss. Code Ann. §§ 99-39-5, 99-37-27). The Mississippi Supreme Court further found that, notwithstanding the procedural bars, Perry's application was without merit and that the filing of future frivolous petitions would subject Perry to the imposition of sanctions. See Exhibit E.

On July 2, 2013, Perry filed a fourth pro se "Application for Leave to Proceed in the Trial Court," which was also docketed in Mississippi Supreme Court Cause Number 2011-M-00194. See SCR, Cause No. 2011-M-00194. In his fourth application, Perry again raised various challenges to his indictment. See id. By Order filed on August 8, 2013, the Mississippi Supreme Court dismissed Perry's application as untimely - and barred as a successive writ. See Exhibit F (citing Miss. Code Ann. §§ 99-39-5, 99-37-27). The Mississippi Supreme Court further found that no exception to the procedural bars existed and that, notwithstanding the procedural bars, Perry's application was without merit. See Exhibit F. Finally, the Mississippi Supreme Court found that Perry's fourth application was frivolous and imposed sanctions. See id.

On March 18, 2015, Perry filed a pro se "Application for Leave to Proceed in the Trial Court on Motion for Post-Conviction Relief and Request for DNA Testing," which was also docketed in Mississippi Supreme Court Cause Number 2011-M-00194. See SCR, Cause No. 2011-M-00194. In his application and attached motion, Perry requested "forensic DNA testing of biological evidence secured in relation to the investigation or prosecution attendant to Petitioner[']s conviction." See SCR, Cause No. 2011-M-00194. Perry brought his claim for DNA testing under the Mississippi Uniform Post-Conviction Relief Act, Miss. Code Ann. § 99-39-1, et seq. In his state court request for DNA testing, Perry raised the following four claims for post-conviction relief, pro se:

(1) Petitioner request[s] forensic DNA testing of biological evidence secured in relation to the investigation or prosecution attendant to Petitioner[']s conviction.

(2) That the conviction was imposed in violation of the constitution of the U.S. or the constitution or laws of Mississippi where Petitioner was denied his 5^th and 14^th Amendment right to due process and 6^th Amendment right to assistance of counsel during custodial interrogation.

(3) That Perry was denied his Fifth (5^th) Amendment right to due process by the State's failure to produce Brady material for impeachment purposes in violation of Brady v. Maryland and Rule 9.04 of the Uniform Circuit and County Court Rules.

(4) That Perry was denied his right to effective assistance of counsel as guaranteed by the Sixth (6^th) Amendment to the United States Constitution and Strickland v. Washington.

See SCR, Cause No. 2011-M-00194.

On May 20, 2015, the Mississippi Supreme Court entered an Order denying Perry's request for DNA testing, specifically finding that Perry failed to show a reasonable probability that DNA testing would have affected the outcome of his trial. See Exhibit G. Mr. Perry was convicted based upon evidence of a series of incidents of sexual abuse, while the DNA evidence at issue involved only a single instance. Doc. 8 at 2-3. The Mississippi Supreme Court dismissed Perry's remaining claims, finding that they were subject to both the statutory time bar and the successive writ bar and that no exception tothe bars existed. See id. (citing Miss. Code Ann. §§ 99-39-5 and 99-39-27). This decision is the first with which Perry takes issue in Ground One of the instant federal habeas petition. See ECF Doc. 1 at 8.

Over two years later, on September 29, 2017, Perry filed another pro se "Application for Leave to Proceed in the Trial Court on Motion for Post-Conviction Collateral Relief," which was also docketed in Mississippi Supreme Court Cause Number 2011-M-00194. See SCR, Cause No. 2011-M-00194. In his application and attached motion, Perry requested "forensic DNA testing of biological evidence secured in relation to the investigation or prosecution attendant to Petitioner[']s conviction." See SCR, Cause No. 2011-M-00194. Perry again brought his claim for DNA testing pursuant to the Mississippi Uniform Post-Conviction Relief Act, Miss. Code Ann. § 99-39-1, et seq. Specifically, Perry raised the following six claims for post-conviction relief, pro se:

(1) Whether the Petitioner was denied his right to protection against double jeopardy as guaranteed by the Fifth (5^th) and Fourteenth (14^th) Amendments to the U.S. Constitution and Article 3 Section 22 of the Mississippi Constitution of 1890 subjecting him to multiple punishments.

(2) Petitioner [requests] forensic DNA testing of biological evidence secured in relation to the investigation or the prosecution attendant to the Petitioner[']s conviction.

(3) Whether Petitioner[']s probation was unlawfully revoked denying him his fundamental constitutional right to due process in sentencing as guaranteed by the Fifth (5^th) and Fourteenth (14^th) Amendments to the U.S. Constitution and Article 3 Section 14 of the Mississippi Constitution of 1890.

(4) Whether Petit

...