United States ex rel. Perine v. Harrington

United States of America ex rel. EMMITT PERINE, Petitioner, v. RICK HARRINGTON, Warden Menard Correctional Center, Respondent.

No. 13 C 2649

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Date: February 19, 2014

Hon. Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner Emmitt Perine brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is incarcerated at the Menard Correctional Center in Menard, Illinois, where he is in the custody of Rick Harrington, the warden of that facility. A jury convicted him on two counts of criminal sexual assault on October 27, 2004. (Dkt. No. 21-3 at 8.) He is currently serving a natural life sentence. (Dkt. No. 21-2 at p. 2.) For the following reasons, the State's Motion to Dismiss Perine's Petition for a Writ of Habeas Corpus is granted.

STATEMENT OF FACTS

Emmitt Perine was convicted of two counts of criminal sexual assault and sentenced to life in prison on March 24, 2005. (Dkt. No. 21-3 at p. 8.) At trial, the prosecution offered testimony from the victim, A.W., who was a fifteen-year-old high school freshman in 2002. (Dkt. No. 21-1 at p. 2.) A.W. testified that Perine approached her in April 2002 when she got off the bus in downtown Chicago. (Id. at p. 1.) Perine told A.W. he approached her because she "had a nice walk" and because she "could be a model." (Id.) Perine offered her modeling information, and A.W. followed Perine to the third floor of a building, where he took her bodymeasurements. (Id.) While measuring A.W., he touched her breasts, lifted her skirt, and commented that she had a "nice behind." (Id.) Perine also noted A.W.'s dry skin, and took out some lotion and rubbed it on her body. (Id. at 3.) Perine told A.W. to "turn around and bend over the stairwell" with her hands and knees on the stairs, where he pulled down her underwear and put his fingers into her vagina. (Id. at p. 4.) He then put his penis into her vagina, and then into her anus. (Id.) When A.W. told Perine she had to leave, he told her to come back later that day. (Id.) Even though A.W. complied with Perine's commands, she testified that she did not say anything at all because she was afraid he might kill her if she screamed for help. (Id. at p. 4.) A.W. eventually reported this incident to her psychiatrist, who told A.W.'s mother. (Dkt. No. 21-2 at p. 6.) A.W.'s mother reported the incident to the police. (Dkt. No. 21-1 at p. 4.)

The prosecution also offered (and the trial court permitted) testimony of nineteen-year-old A.D. as evidence of Perine's prior conduct. Perine approached A.D. on De Paul's loop campus in May 2002 (one month after the incident with A.W.) and asked if she was interested in modeling. (Dkt. No. 21-1 at p. 4.) When A.D. told Perine she was not interested in modeling, Perine offered her information on a college scholarship. (Id.) When A.D. told Perine that she might be interested, he led her to an empty classroom on campus, where he took out a tape measure to take her measurements "for a dress," which Perine told her was because she needed to host a dinner party in order to receive the scholarship. (Id. at p. 5.) While he measured her, Perine fondled A.D.'s breasts, pulled down her jeans, and then rubbed lotion on her body. (Id.) A.D. testified that she was alarmed and uncomfortable, so she left, and she reported the event to the police. (Id.)

Twenty-one-year old, T.M., also testified at trial. Perine approached T.M. in June 2002 (two months after the incident with A.W.) and asked her if she was interested in being a modelbecause she "looked like model." (Dkt. No. 21-1 at p. 5.) When T.M. met Perine the next day for a modeling audition, Perine led her to an empty classroom and took her measurements with his tape measure. (Id. at p. 6.) While measuring her, Perine squeezed her breasts, and T.M. became uncomfortable. (Id.) T.M. asked for a flier of information on the modeling job, and after she did not receive one, she left the classroom. (Id.) Upon leaving, she asked the security guard if he knew about the modeling "auditions" on campus. (Id.) When the security guard stated he did not know anything about modeling auditions, T.M. pointed Perine out to a security guard, who detained Perine for trespassing and turned him over to police custody. (Id.)

The trial court also allowed testimony from P.H., the victim involved in a 1987 criminal sexual assault case to which Perine pled guilty. (Dkt. No. 21-2 at p. 9.) P.H. testified that in 1987, she was twenty-six years old, and she had known Perine from work for about one year. (Dkt. No. 21-1 at p. 7.) P.H. also testified that she ran into Perine outside a store on State Street, and Perine invited her to a conference reception. (Id.) Perine led P.H. to an empty conference room where they shared a few drinks of champagne. (Id. at p. 10.) P.H. testified that when she told Perine she had to leave, he knocked her out of her chair and onto the floor, where Perine proceeded to hit her several times and put his elbow against her throat as he beat and suffocated her. (Dkt. No. 21-2 at p. 10 (citations to the trial record omitted).) Perine then removed her clothes, performed oral sex on her, and vaginally penetrated her. (Id.)

On October 27, 2004, a jury convicted Perine of two counts of criminal sexual assault. (Dkt. No. 21-3 at p. 7.) Perine filed a timely appeal with the Appellate Court of Illinois on April 13, 2005. (Dkt. No. 21-3 at p. 8.) Perine raised two issues on appeal: (1) the trial court failed to prove that he "committed an act of sexual penetration by the use of force or threat of force," and (2) the trial court erred by allowing proof of other crimes to show Perine's propensity to commitcrime because the 1987 incident was not similar enough, and such evidence was prejudicial. (Dkt. No. 21-1 at pp. 8, 12.) The Appellate court affirmed the jury's verdict on September 28, 2007. (Id. at p. 2.) Specifically, the Illinois Appellate Court rejected both of Perine's claims, finding that although A.W. did not cry out for help, the evidence showed her lack of consent. (Id. at p. 11.) Dismissing Perine's first argument, the court found that "the evidence this case clearly demonstrates that defendant acted against A.W.'s will." (Id.) Addressing Perine's second issue, the court agreed that the 1987 incident was not similar enough to the instant offense because it was over fifteen years earlier and involved a complainant that was twenty-six years old and knew the Perine from work. Thus, the Appellate Court found it was an error to admit such testimony against the Perine at trial. (Id. at pp. 14-15.) Nevertheless, the court affirmed Perine's conviction because found reversal "unnecessary [because] the evidence of defendant's guilt was clear." (Id. at p. 15.) On October 17, 2007, Perine filed a petition for rehearing, which was denied on November 16, 2007. (Id.; Dkt. No. 21-2 at p. 56.) The appellate court issued a modified order on November 21, 2007, changing the language in its prior order to add the word "potential" when discussing the prejudice Perine may have endured when the trial court erroneously admitted testimony about the 1987 incident into evidence at his trial. (Dkt. No. 21-2 at pp. 24-25.)

Perine filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court of Illinois, which the Supreme Court denied on March 26, 2008. (Dkt. No. 21-3 at p. 1.) He raised two issues in his petition: (1) the appellate court mistakenly substituted complainant's lack of consent for evidence of defendant's use of force or threat of force, and such holding was unsupported by law; and (2) the appellate court erred by affirming the trial court's decision to allow proof of other crimes evidence, which was improper, but did not warrant reversal andremand. (Dkt. No. 21-2 at p. 3). The court summarily dismissed Perine's claims. (Dkt. No. 21-3 at p. 1.) Perine filed the present habeas petition on June 3, 2013¹ and presents three claims:

1. The trial court abused its discretion by admitting testimonial evidence from a 1987 aggravated criminal sexual assault to which Perine pleaded guilty;

2. The prosecution used the complainant's victim's perjured testimony to obtain a conviction; and

3. He received ineffective assistance of counsel when counsel failed to obtain or use victim's mental health records at trial.

(Dkt. No. 9 at p. 2-14.)

DISCUSSION

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs petitions for writs of habeas corpus filed after April 24, 1996. Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir. 2004). Under the AEDPA, a federal district court may issue a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). For claims adjudicated on the merits in state court proceedings, the district court may issue a writ of habeas corpus only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d); Cheeks v. Gaetz, 571 F.3d 680, 684 (7th Cir. 2009).

I. Perine's petition is untimely.

A. Statute of Limitations

Under the AEDPA, a state prisoner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The statutory period runs from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (3)...