Perry v. Kemna

• Citation: 356 F.3d 880
• Decision Date: 30 January 2004
• Docket Number: No. 03-1086.,03-1086.
• Parties: Jeremaine PERRY, Appellant, v. Michael KEMNA, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

356 F.3d 880

Jeremaine PERRY, Appellant, v. Michael KEMNA, Appellee.

No. 03-1086.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2003.

Filed: January 30, 2004.

Rehearing and Rehearing En Banc Denied March 16, 2004.

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Sean Dennis O'Brien, argued, Kansas City, MO, for appellant.

Andrew W. Hassell, argued, Jefferson City, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jeremaine Perry was convicted in state court of second-degree murder and sentenced to life imprisonment. After exhausting his state post-conviction remedies, Mr. Perry filed a petition under 28 U.S.C. § 2254. The district court¹ denied Mr. Perry's petition but granted him a certificate of appealability on one of his claims, and we then granted him a certificate of appealability on the four additional claims addressed in this appeal. We affirm the district court in all respects.

I.

In an appeal from a judgment on a § 2254 petition, "[w]e review the district court's findings of fact for clear error and its conclusions of law de novo." Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003). "[W]ith respect to any claim" that the state court "adjudicated on the merits," we will grant relief only if that court's decision is "contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or is "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d).

II.

Samuel Duke, Sr., Mr. Perry's grandfather, was shot twice in the head on January 2, 1993, and died that day. Mr. Perry, who was fifteen years old at the time, was arrested as a suspect in the murder, and eventually charged and convicted, following interviews with the police on January 2, 3, 4, and 7, 1993.

Mr. Perry's pretrial counsel was Dee Wampler, whom he retained on January 4 prior to his third interview. Mr. Perry asserts that Mr. Wampler rendered ineffective assistance by arranging for him to be interviewed by police once without the presence of counsel (on January 4) and again with counsel absent for a part of the time (on January 7), during which interviews Mr. Perry made damaging statements that were used against him at trial. Mr. Perry contends that the state court erroneously found that he and his parents decided that he should talk to the police despite Mr. Wampler's express advice not to do so.

It is helpful to clarify the contents of the Missouri courts' findings of fact relating to the ineffective assistance of counsel claim, as these findings are presumed to be correct absent "clear and convincing evidence" to the contrary presented by Mr. Perry, see 28 U.S.C. § 2254(e)(1). This "presumption of correctness applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. The statute makes no distinction between the factual determinations of a state trial court and those of a state appellate court." King v. Bowersox, 291 F.3d 539, 540 (8th Cir.2002) (internal quotations omitted), cert. denied, 537 U.S. 1093, 123 S.Ct. 693, 154 L.Ed.2d 641 (2002).

The Missouri Court of Appeals made the following factual findings in denying Mr. Perry's ineffective assistance of counsel claim:

There was testimony at the evidentiary hearing that Wampler advised [Mr. Perry] against making both the January 4th and the January 7th statements to the police. Wampler testified that he initially advised [Mr. Perry] not to go to the interview on January 4, but that it was "their call. If Jermaine wanted to go it was — it would be his call; he's the client." Wampler testified that he did call to confirm the 1:30 appointment "as just a courtesy." On cross-examination, Wampler testified that he advised the Perrys to not feel pushed into having to make the 1:30 appointment with the juvenile officer. Wampler testified that he "warned them about the pitfalls of talking to the police," but the Perrys were "hell bent" on talking to the police and telling the truth.

Conversely, Eldo Rado Perry ([Mr. Perry's] adoptive father) testified that he had not scheduled the appointments, but that the decision was made by Wampler. He testified that Wampler did not advise them against it, and told them to return on January 7 for an appointment with juvenile authorities. Mary Perry ([Mr. Perry's] mother) testified that going to the 1:30 p.m. appointment on January 4 was Wampler's idea and that he made the phone call to arrange it. She testified that she did not want [Mr. Perry] to make a statement. [Mr. Perry] testified that when he went to the January 4 interview, it was what his attorney wanted him to do, and that he did not want to go, nor did his parents want him to go to the interview. He testified that Wampler set up the interview, and made the decision for him to talk to the police on January 7. [Mr. Perry] also testified that Wampler told him it was best to make the statement, and that Wampler never said he was better off not talking to the police.

Wampler testified that he did not remember whether he scheduled the January 7th meeting, or if someone else did. Wampler did state that his "general thought" was that if [Mr. Perry] talked to the police, it might result in him remaining under the juvenile system, and not be certified as an adult. Wampler accompanied [Mr. Perry] to the January 7 statement.

Giving deference to the motion court's ability to judge the credibility of the witnesses, this court does not conclude that the court erred when finding this claim to be "without merit." There was evidence indicating that the attorney's performance was not deficient, as he testified that he advised [Mr. Perry] not to talk to the authorities, and [Mr. Perry] acted against that advice.

Perry v. State, 11 S.W.3d 854, 858-59 (Mo. Ct.App.2000). The district court, after citing the factual findings of the Missouri courts, stated:

Absent clear and convincing evidence to the contrary, the factual determinations of the state court are presumed to be correct. See 28 U.S.C. § 2254(e)(1). [Mr. Perry] has not presented this Court with clear and convincing evidence that would cause this Court to disregard factual determinations made by the Missouri courts. Therefore, as stated by the Missouri Court of Appeals, there is evidence tending to show that Mr. Wampler's performance was within the bounds of competency in advising [Mr. Perry] not to make a statement to authorities on January 4th and 7th and that [Mr. Perry], at the behest of family members seeking the truth, made the statements anyhow. In light of the facts as found by the Missouri courts, this Court cannot say that the holding of the Missouri Court of Appeals is contrary to, or involved an unreasonable application of, clearly established federal law as is required before this Court can issue a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1).

While the Missouri Court of Appeals made its findings of fact regarding Mr. Wampler's behavior in the process of evaluating Mr. Perry's ineffective assistance of counsel claim, which involved both questions of law and fact, the underlying factual findings are entitled to deference. We agree with the district court that, in the course of rejecting Mr. Perry's ineffective assistance of counsel claim, the Missouri Court of Appeals found it to be a fact that Mr. Wampler advised Mr. Perry against making both the January 4 and the January 7 statements to the police.

Indeed, Mr. Perry agrees in his brief that the Missouri courts made a factual finding that Mr. Wampler advised him not to talk to the police on both January 4 and 7. Discussing a statement made by Mr. Wampler during the January 7 interview, Mr. Perry argues that "[t]his cannot be reconciled with the state court's finding that Wampler's advice to appellant was not to proceed with the interrogation." Mr. Perry also notes that "Wampler claimed that he advised appellant not to talk to police on January 4 and 7, 1993, a position which the state court credited." Mr. Perry's argument is not that the Missouri courts did not find that Mr. Wampler advised him not to talk to the police on January 4 and 7, but that the presumption of correctness of this finding has either been overcome or is inapplicable. He has thus acquiesced in the district court's determination that the state court found it to be a fact that Mr. Wampler advised him not to talk to the police, and he has consequently forfeited any claim based upon the premise that the state court never made such a factual finding.

In attempting to demonstrate that the state courts' fact-finding was inconsistent and contradictory, and thus not entitled to a presumption of correctness, Mr. Perry relies upon evidence before the state post-conviction court that Mr. Wampler affirmatively allowed both interviews to proceed. A deputy juvenile officer testified that Mr. Wampler called to set up the date and time of the January 4 interview after indicating that Mr. Perry "wanted to come into the office and tell [the police] what happened." During the audiotaped January 4 interview, the chief juvenile officer told Mr. Perry that Mr. Wampler had "authorized" Mr. Perry to "go ahead and talk to us in his absence" and that Mr. Wampler had "indicated to us that you can proceed." And during the audiotaped January 7 interview, Mr. Wampler, who was present during the first part of the interview, affirmatively indicated to a detective that he was "ready to proceed to allow [Mr. Perry] to be questioned."

None of this evidence, however, is inconsistent with or contradicts the state court's finding that Mr. Wampler had advised Mr. Perry not to talk to the police on January 4 and 7. It does tend to show that Mr. Wampler left the ultimate choice of whether to talk to the police to his client and that he did not impede Mr. Perry's desire to ignore his legal advice by...