Perry v. Louisiana

• Decision Date: 30 March 2020
• Docket Number: CIVIL ACTION NO. 19-13002 SECTION "T"(2)
• Parties: TYRONE PERRY v. STATE OF LOUISIANA
• Court: U.S. District Court — Eastern District of Louisiana

TYRONE PERRY v. STATE OF LOUISIANA

CIVIL ACTION NO. 19-13002 SECTION "T"(2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

March 30, 2020

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).¹ For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. FACTUAL BACKGROUND

The petitioner, Tyrone Perry, is a convicted inmate incarcerated in the Bayou Dorcheat Correctional Center in Minden, Louisiana.² On June 23, 2016, Perry wascharged by bill of information in Jefferson Parish with being a felon in possession of a weapon, possession of cocaine and battery with injury upon a police officer.³ He entered a not guilty plea on July 18, 2016.⁴ The Louisiana Fifth Circuit Court of Appeal summarized the facts established at trial as follows:

At approximately 1:05 a.m. on June 1, 2016, Officer Vincente Paz of the Gretna Police Department was dispatched to a disturbance call at an apartment complex located in the 1400 block of Palfrey Street in Gretna. As he approached the area in his marked police car, Officer Paz noticed a black Nissan Titan truck, with its tail lights on, approximately a quarter of a block away from the complex on the right side of the road. Officer Paz passed and pulled up in front of the truck. As he exited his unit, Officer Paz observed the truck roll backwards and hit the vehicle, an Envoy, parked behind it. The Titan then moved forward in an apparent attempt to leave, prompting Officer Paz to approach the truck and shine his flashlight through the windshield to illuminate the inside of the vehicle and to signal the driver to stop. When he did so, he saw a man, later identified as defendant, "kind of reaching down." Defendant thereafter stopped, exited his truck, and walked towards the back of his vehicle to check out the damage.

Officer Paz started asking defendant questions in an attempt to gather information about the accident and to determine if he knew the identity of the owner of the other vehicle. After Officer Paz asked defendant what he was doing in the area, defendant became nervous, started physically shaking, avoided eye contact, and slurred his words. Defendant then walked back to his vehicle and attempted to leave. Despite the officer's directive not to leave, defendant tried to open the door of his vehicle. At that point, Officer Paz grabbed defendant by his right wrist. Defendant then pulled away from him violently and took a "fighting stance." As Officer Paz attempted to again grab defendant's wrist to handcuff him, defendant jerked away, punched him in the face, and fled northbound on Palfrey Street. Although the officer was disoriented from the punch, he managed to call for assistance and chase after defendant.

As defendant ran, Officer Brad Cheramie, who had also responded to the initial disturbance call and had seen defendant punch Officer Paz, pulled out his baton and struck defendant in the leg. Officer Paz then tackled defendant from the rear, and defendant fell to the ground, at which point a physical struggleensued. Officer Cheramie and Officer Jason Dufrene, who was also on the scene and had observed defendant hit Officer Paz, joined in the struggle to try to handcuff defendant. As the officers tried to stabilize defendant's right hand, Officer Cheramie observed defendant reach with his left hand into his pocket, grab a clear plastic bag containing a white rock-like substance, and toss it backwards in the direction of the patrol unit. Defendant eventually quit struggling and complied with Officer Paz''s command to put his hands behind his back. The officers then handcuffed defendant and conducted a pat down but did not feel any weapons on him. They escorted defendant to the patrol car and conducted a search incident to arrest, which resulted in the recovery of eighty-four dollars and a cell phone.

Once defendant was secured in the patrol car, Officer Cheramie advised Officer Paz of his observations regarding the bag that was tossed during the struggle. The officers went to the area, retrieved the bag, and discovered that it contained forty-nine smaller, clear plastic bags filled with off-white rock-like substances, which tested positive for cocaine.

Thereafter, Officer Corey Newbie of the Gretna Police Department arrived with his dog and conducted a "free air sniff" of defendant's vehicle. As they approached the driver's side door handle area, the dog gave a "passive indication" of a narcotics odor. Officer Newbie then placed the dog inside the vehicle, and the dog kept going back to the driver's seat. A subsequent search of the vehicle resulted in the recovery of a gun from underneath the driver's seat. As a result of this incident, defendant was charged with various offenses, including battery on a police officer, possession with intent to distribute cocaine, and possession of a firearm by a convicted felon.

State v. Perry, 250 So.3d 1180, 1187-88 (La. App. 5th Cir. 2018); State Record Volume 3 of 7, Louisiana Fifth Circuit Court of Appeal Opinion, 17-KA-567, pages 2-4, June 27, 2018.

At a March 20, 2017, hearing, the state trial court granted Perry's motion to represent himself.⁵ He was tried before a jury on March 21 and 22, 2017, and found guilty as charged as a felon in possession of a firearm (count one) and for battery with injury upon a police officer (count three) and not guilty of possession of cocaine (counttwo).⁶ On March 29, 2017, the state trial court sentenced Perry to 15 years in prison on count one without benefit of parole, probation or suspension of sentence and concurrent with three years in prison for count three.⁷ At the hearing, the State indicated an intent to file a multiple offender bill, but no bill was ever filed. On August 23, 2017, the state trial court denied for lack of jurisdiction Perry's out-of-time motion to reconsider the sentence.⁸

On direct appeal to the Louisiana Fifth Circuit Court of Appeal, Perry's appointed counsel asserted four errors:⁹ (1) The state trial court erred by denying the motion to suppress the firearm. (2) The state trial court erred by allowing Perry to represent himself. (3) The state trial court erred by denying certain challenges for cause during voir dire. (4) The state trial court imposed an excessive sentence on count one. In his pro se supplemental briefs, Perry asserted the following claims:¹⁰ (1) The state trial court erred by not removing and replacing appointed counsel on November 14, 2016. (2) The Statefailed to prove that Perry was knowingly in possession of the firearm. (3) The state trial court erred by failing to recognize Perry's right to defend himself from illegal arrest.

On June 27, 2018, the Louisiana Fifth Circuit affirmed Perry's convictions and the sentence for count one.¹¹ The court denied Perry's challenge to the failure to replace his counsel but did not rule on the rest of Perry's ineffective assistance of counsel claim (pro se claim number one), deferring it to post-conviction review. The court also held that counsel-filed claim three was not preserved for appeal and, alternatively, that the remaining claims were meritless.

After its errors patent review, the Louisiana Fifth Circuit also remanded the matter in part for resentencing on count three because the state trial court failed to assign the statutorily required parole, probation and suspension of sentence restriction. On July 30, 2018, the state trial court complied and resentenced Perry on count three to three years in prison without benefit of parole, probation or suspension of sentence.¹² Perry did not seek review of the resentencing.

On November 14, 2018, the Louisiana Supreme Court denied Perry's related writ application without stated reasons.¹³ Perry's convictions and sentences became finalninety (90) days later on February 12, 2019, because he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. S. Ct. Rule 13(1); Burton v. Stewart, 549 U.S. 147 (2007) (in a criminal case, judgment includes conviction and sentence, therefore the AEDPA "limitations period did not begin until both his conviction and sentence 'became final by the conclusion of direct review or the expiration of the time for seeking such review,'" citing 28 U.S.C. § 2244(d)(1)(A)).

On March 29, 2019, Perry submitted a "Motion for Post-Conviction Relief" to the state trial court asserting the following grounds for relief:¹⁴ (1) He was denied effective assistance of counsel when his appointed counsel (a) failed to obtain the identity of a favorable defense witness, (b) refused to subpoena the officers' conduct records as impeachment evidence and (c) pursued plea deals as a defense strategy rather than gathering favorable evidence. (2) The State withheld Brady information related to the identity if the sole, key witness for the defense and other favorable evidence, including the officers' disciplinary records, radio communications, police reports and supplemental reports, evidence reports and photographs, which were produced the day before or at trial. (3) The State failed to answer Perry's questions as to why certain charges placedagainst him during arrest, including use of firearm in a crime involving controlled dangerous substance\violence, hit and run driving, resisting arrest, controlled dangerous substance crime in a school zone and simple...