United States v. Perkins, Civil No. 3:12CV956(EBB)
| Decision Date | 13 December 2012 |
| Docket Number | Crim. No. 3:98CR45(EBB),Civil No. 3:12CV956(EBB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES OF AMERICA v. TERRY L. PERKINS |
Defendant Terry Perkins ("Perkins") has moved, pro se, to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The petition was transferred to this Court by the Second Circuit after Perkins filed a motion in that court seeking an order authorizing this Court to consider his second or successive § 2255 petition. The Second Circuit denied that motion as unnecessary, and ruled that his § 2255 was not successive because it related to his firearms conviction (in case # 3:98cr45 (EBB)) and the claims he raises were not at issue or decided in his prior § 2255 petition, which only challenged his separate narcotics conviction (in case # 97cr221(EBB)).
The Court has now carefully considered and liberally construed Perkins's claims in light of his pro se status, but finds them to be without merit. Accordingly, Perkins's § 2255 petition [doc. # 1], as well as his motions for summary judgment [doc. ## 5 & 7 ], his motion for judgment on the pleadings [doc. # 6], and his motion to expedite summary judgment [doc. #11] are DENIED.
On March 14, 2000, the Court sentenced Perkins in two separate criminal cases, In thefirst case, 3:97cr221(EBB), Perkins was sentenced to the statutory mandatory minimum sentence of 240-months imprisonment following his guilty plea to one count of an indictment that charged him with possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On that same day, the Court also imposed a 120-month sentence in a second case, 3:98cr45(EBB), after Perkins pleaded guilty to one count of an indictment charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C, § 922(g)(1).1 The sentence in the firearms case was imposed concurrent to the sentence in the narcotics case.
Perkins appealed his convictions, claiming that the Court erred in denying his motions to withdraw his guilty pleas in both cases. He did not raise any other challenge to his felon in possession conviction. On September 27, 2000, the Second Circuit affirmed his convictions and sentences. Thereafter, on July 9, 2001, Perkins filed in this Court a § 2255 petition for habeas corpus relief. The petition was docketed in both his narcotics case (3:97cr221(EBB)) and in his felon in possession case (3:98cr45(EBB)). The Court denied his petition and denied a certificate of appealability and the Court's ruling was docketed in both cases. The Second Circuit dismissed his appeal.
Now, in his current § 2255 petition, Perkins asserts that his felon in possession conviction was illegally based on an invalid predicate firearm conviction because he legally possessed the firearm and/or the predicate conviction was based on an uncounseled guilty plea in violation of Gideon v. Wainwright, 372 U.S. 335 (1963).2 For the following reasons, the Court finds nomerit to Perkins's claims.
In opposition, the government asserts that Perkins's motion is time barred, his claims are procedurally defaulted and the default is not excused by his claim of actual innocence, his arguments relating to the validity of his felon in possession conviction are substantively without merit and he has not shown any prejudice. The Court agrees, and as set forth below, finds that Perkins's claims are time barred, but even if they were timely, they are substantively without merit.
A petition for habeas corpus relief under § 2255 must be filed within one year of, inter alia, the date on which the challenged judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, 28 U.S.C. § 2244(d)(1). Perkins's conviction became final on September 27, 2001, the date on which his time to seek a writ of certiorari from the United States Supreme Court expired. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). Thus, Perkins had one year, until September 27, 2002, to file a § 2255 petition.
Although the one year statute of limitations is strictly enforced, it is not a jurisdictional bar. In rare and exceptional circumstance, it may be equitably tolled. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). A petitioner is "entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). These two inquiries are interdependent. "A petitioner seeking equitable tolling must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir. 2010). Only if the petitioner satisfies this two-prong inquiry may the court "extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)), Perkins has not made the required showing, let alone extraordinary circumstances, that would justify tolling the statute of limitations for ten years. Accordingly, his motion is time barred and must be dismissed on that ground regardless of the merits of his claims.
Besides being time barred, the claims Perkins asserts in this § 2255 motion are procedurally barred because he did not raise them on direct appeal, Bousley v. United States, 523 U.S. 614, 622 (1998) (). Hisprocedural default bars review of his claims unless he shows cause for the default and prejudice resulting from the error or that he is actually innocent. Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (quoting Bousley v. United States, 523 U.S. at 623); Rosario v. United States, 164 F.3d 729, 733-34 (2d Cir. 1998). Actual innocence means factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 622. In other words, Perkins must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Id. Further, the actual innocence claim must be provable on the existing record, which is a "higher hurdle" than the prejudice prong of the cause and prejudice standard. DeJesus v. United States, 161 F.3d 99, 103 (2d Cir. 1998).
To avoid the procedural bar, Perkins asserts that he is actually innocent of being a felon in possession because he was convicted of conduct that did not constitute a crime and the conviction was based on an uncounseled Connecticut conviction. Even though, as discussed below, his claims are without merit, the Court excuses his procedural default.
As noted, Perkins maintains that his 18 U.S.C. § 922(g)(1) conviction of being a felon in possession is invalid and unconstitutional because (1) the predicate felony conviction was obtained without the benefit of counsel in violation of Gideon v. Wainwright, 372 U.S. 335 (1963); and (2) he was lawfully in possession of the firearm because his civil rights had been restored prior to the commission of the § 922(g)(1) offense. Neither claim is availing.
Under § 922(g)(1), it is unlawful for any person who has been convicted in any court of a felony to possess any firearm or ammunition. The mere fact of a prior conviction at the time of the defendant's possession of the firearm, not the reliability of the conviction, establishes the§ 922(g)(1) predicate. Burrell v. United States, 384 F.3d 22, 27 (2d Cir. 2004) (citing Bonfiglio v. Hodden, 770 F.2d 301, 306 (2d Cir. 1985)). A § 922(g)(1) conviction is "not subject to attack on the ground that a predicate conviction is subsequently reversed, vacated or modified." Lewis v. United States, 445 U.S. 55, 64 (1980). As the Supreme Court noted, to limit the scope of § 922(g)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Id. The clear intent of § 922(g)(1) is to require a defendant with a felony conviction on his record to "clear his status before obtaining a firearm" thereby fulfilling Congress' purpose broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. Id. at 64-65.
Accordingly, Perkins's claim that his predicate Connecticut conviction was uncounseled in violation of Gideon v. Wainright, and thus cannot serve as a predicate felony conviction under § 922(g)(1), is directly foreclosed by Lewis. See Bonfiglio v. Hodden, 770 F.2d 301, 304-05 (2d Cir. 1985). In Lewis, the Supreme Court ruled that a defendant's prior state-court conviction that was flawed because the defendant had not been represented by counsel as required by Gideon, could properly be used as a predicate for a subsequent federal conviction of being a felon in possession.3 Lewis, 445 U.S. at 66-67. Based on Lewis, the fact that Perkins's prior Connecticut felony conviction was uncounseled does not render it an invalid predicate felony conviction in connection with his § 922(g)(1) offense,
Similarly without merit is Perkins's claim that his felon in possession conviction wasimpermissibly predicated on his prior Connecticut narcotics conviction because that conviction was expunged and his civil rights had been restored upon his release from incarceration and thus he was not under a firearms disability at the time of the § 922(g)(1) o...
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