Perkins v. Dunn

ROY E. PERKINS, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, WALTER MYERS,Acting Warden, Holman Correctional Facility, Respondent.

CASE NO. 7:14-CV-1814-SLB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

September 19, 2019

MEMORANDUM OPINION

This case is presently before the court on Roy E. Perkins's Petition for a Writ of Habeas Corpus by a Person in State Custody under a Death Sentence, (doc. 1),¹ seeking relief from his state-court conviction for capital murder and death sentence. Perkins was convicted of capital murder and sentenced to death for the murder of Cathy Gilliam. He has filed this petition seeking habeas relief pursuant to § 2254.For the reasons set forth below, the court finds that Perkins's Petition for a Writ of Habeas Corpus is due to be denied.

TABLE OF CONTENTS

I. THE OFFENSE CONDUCT ........................................ 3

II. THE SENTENCING ORDER ...................................... 9

III. PROCEDURAL HISTORY ...................................... 14

IV. STANDARD OF REVIEW ....................................... 17

V. EVIDENTIARY HEARING ...................................... 19

VI. DISCUSSION OF PERKINS'S CLAIMS ........................... 20

A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE AND OFFERING A FALSE STIPULATION ......................................... 20

1. Due Process Violation Under Brady v. Maryland ............ 20

2. Due Process Violation under Napue v. Illinois and Giglio v. United States ............................................ 36

B. THE STATE TRIAL COURT VIOLATED PERKINS'S RIGHT TO COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR PRETRIAL PREPARATIONS ....................... 43

C. FAILURE TO GRANT A CHANGE OF VENUE ................ 52

D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR TRIAL AND RELIABLE SENTENCE ............... 63

1. Overlooked Claims or Presumed Ruling on the Merits ........ 69

2. Admission of Evidence of Prior Acts and Perkins's Right to Due Process ........................................... 71

a. Evidence of the Rapes of D.W. and B.P ............... 79

b. Incident at Darlene Hall's House .................... 84

c. The Gray Truck and the .357 Magnum Handgun ....... 88

3. Failure to Give Limiting Instruction ....................... 92

E. SUFFICIENCY OF THE EVIDENCE .......................... 96

F. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ...... 102

1. Standard of Review ................................... 102

a. The Performance Prong .......................... 104

b. The Prejudice Prong ............................. 106

c. Deference Accorded State Court's Decisions ......... 108

2. Failure to Strike Juror V.H ............................. 110

3. Failure to Request a Limiting Instruction .................. 132

4. Failure to Investigate and Present Available Mitigating Evidence ................................................ 151

5. Failure to Challenge Perkins's Rape Conviction ............ 177

G. THE JURY'S CONSIDERATION OF EXTRINSIC EVIDENCE - THE BIBLE IN THE JURY ROOM ............................ 202

H. PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT ..................................................... 207

1. The IQ Test Score - Intellectual Functioning .............. 215

2. Adaptive Functioning ................................. 218

3. Failure to Grant Evidentiary Hearing ..................... 220

I. THE BATSON CLAIM ..................................... 222

VII. CONCLUSION .............................................. 232

CERTIFICATE OF APPEALABILITY ............................... 232

I. THE OFFENSE CONDUCT

The following summary of the evidence relevant to the offense is taken from the opinion of Alabama Court of Criminal Appeals on direct appeal.

On August 9, 1990, at approximately 4:00 p.m., 33-year-old Cathy Gilliam was abducted at gunpoint from her home in the Tuscaloosa County community of New Lexington. Candace Gilliam, Mrs. Gilliam's daughter, testified that she was in her bedroom at approximately 4:00 p.m. on August 9, when she heard her mother scream. After thistestimony, Candace, who was 14 years old at the time of the trial, was excused from the courtroom; in lieu of further live testimony from Candace, it was stipulated that her testimony would have been as follows had she continued to testify: When she heard her mother scream a second time, Candace went to the kitchen. There she saw a man holding her mother and pointing a black pistol at her mother's head. She heard her mother yell for help and say "something about a rapist." [(Doc. 10, Vol. 11 at 1755.)] Candace watched as the man led her mother outside to a vehicle parked behind her mother's car. She could not see the vehicle well, but did notice that it was bigger than a car and that it was gray in color. At that point, Candace telephoned her grandmother. Candace was unable to give a detailed description of the man who had abducted her mother, but she did tell police that the man had brown, straight hair and a thin beard, and that he was not much taller than her mother.

Maudeen Hood, a resident of New Lexington who lived two to three miles from the Gilliam residence, testified that at approximately 5:00 p.m. on August 9, Cathy Gilliam knocked on her back door. According to Hood, Mrs. Gilliam stated that she had been shot and that she was going to die, and she asked Hood to call her father-in-law and to take her to the hospital. Hood stated that she helped Mrs. Gilliam into her kitchen, where Mrs. Gilliam lay on the floor; Hood then telephoned Mrs. Gilliam's father-in-law. When no one answered, Hood telephoned for help. Mrs. Gilliam told Hood that her assailant was about her husband's size, had long brown hair, a beard, and a mustache, and was driving a gray pickup truck. Mrs. Gilliam also told Hood that her assailant had brought her to Hood's house and that he had said that he did not mean to shoot her.

At approximately 5:15 p.m. on August 9, Norman Eldon Willingham, an Alabama state trooper, and Harry Montgomery, Chief Deputy Sheriff of the Tuscaloosa County Sheriff's Department, arrived at the Hood residence. Willingham testified that upon arriving, he saw Mrs. Gilliam lying on the kitchen floor; she had a gunshot wound to her chest. He stated that although Mrs. Gilliam had been shot in the chest, he immediately noticed that there was no hole in the front of her shirt.

He stated that Mrs. Gilliam appeared pale, that she was having trouble breathing, and that she was complaining of pain and asking for help. When Willingham asked Mrs. Gilliam to describe her assailant, Mrs. Gilliam told him that he was a white male, approximately 30 years old, with medium-length hair and facial hair, and he was driving a gray full-size pickup truck. In addition, Mrs. Gilliam told Willingham that she had been sitting down when she was shot, and that it had been at least one hour since the shooting. Montgomery testified that he asked Mrs. Gilliam if she knew her assailant, and that she responded that she did not.

Gary Wayne Hunnicut, fire chief with the Samantha Volunteer Fire Department, testified that he was dispatched to the Hood residence on August 9, 1990. He stated that when he arrived, Donnie Hallman, a fellow volunteer, was already on the scene treating Mrs. Gilliam. In addition, both Willingham and Montgomery were present. Hunnicut testified that while he and Hallman were treating Mrs. Gilliam, he heard either Willingham or Montgomery ask Mrs. Gilliam if Perkins was her assailant. According to Hunnicut, Mrs. Gilliam "grunted" and nodded her head in the affirmative. [(Id., Vol. 12 at 1987.)] In addition, Hunnicut said he heard Mrs. Gilliam grunt and saw her nod her head in the affirmative when either Willingham or Montgomery asked her if she had been shot with a pistol.

Scott Sassaman, a paramedic with the Suburban Ambulance Company, testified that he arrived at the Hood residence at approximately 5:46 p.m. on August 9. Hallman was already working on Mrs. Gilliam. Sassaman stated that he took over Mrs. Gilliam's treatment and put Mrs. Gilliam in "mass trousers" — air-filled pants that move blood from the lower body to the upper extremities. [(Id. at 2023.)] Sassaman stated that he saw no gunpowder residue on Mrs. Gilliam. According to Sassaman, Mrs. Gilliam was placed in the ambulance at approximately 6:00 p.m. While in the ambulance, Sassaman said, Mrs. Gilliam expressed concern about her family and stated that she was going to die. Mrs. Gilliam died in the ambulance on the way to the hospital.

On August 10, 1990, Kenneth Warner, the State Medical Examiner for Tuscaloosa County, performed an autopsy on Mrs. Gilliam. Warner testified that Mrs. Gilliam died from a gunshot wound to her chest that destroyed her liver. He stated that, in addition to the gunshot wound, there was a stab wound just above Mrs. Gilliam's right collarbone. The hyoid bone in Mrs. Gilliam's neck was broken, Warner said, and there was hemorrhaging in her neck muscles. Warner stated that these injuries were consistent with a struggle having taken place. Warner also stated that he found no evidence that Mrs. Gilliam had been raped and that there was no gunpowder residue around the gunshot wound. He testified that if Mrs. Gilliam was wearing a shirt at the time of the shooting, the absence of gunpowder residue around the wound would be meaningless, but that if Mrs. Gilliam was not wearing a shirt when she was shot, the absence of gunpowder residue would indicate that the fatal shot was fired from at least 18 inches away.

Vernon Hudson, Chief Deputy of the Fayette County Sheriff's Department, testified that he was driving south on Highway 63 on August 9, 1990, at approximately 5:30 p.m., when he saw Perkins, whom he knew personally, driving north in a gray pickup truck. Hudson stated that he knew Perkins was wanted in connection with the

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