United States v. Perry

United States of America, Plaintiff, v. Quentin Lamont Lavell Perry, Defendant.

Crim. No. 16-287 (PAM/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 24, 2021

MEMORANDUM AND ORDER

This matter is before the Court on Defendant's Motion to Vacate under 28 U.S.C. § 2255. For the following reasons, the Motion is denied.

BACKGROUND

In July 2017, a jury convicted Defendant Quentin Lamont Lavell Perry for possession of a gun and ammunition as a felon. (Docket No. 81.) The evidence at trial established that Perry shot a gun outside the Alamo Bar in St. Paul, Minnesota. The Court sentenced Perry to 180 months' imprisonment, a 55-month downward variance from the otherwise appliable sentencing guidelines range. (Docket No. 90.)

Perry appealed, asserting that: (1) the Court erred in denying his motion to suppress evidence seized during his arrest and that he was arrested without probable cause; (2) his due-process rights were violated at trial, and (3) the Court erred in finding him an armed career criminal. The Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Perry, 908 F.3d 1126 (8th Cir. 2018). Perry sought certiorari from the United States Supreme Court, but his petition was denied on October 9, 2019. (Docket No. 120.)

Perry filed the instant Motion to Vacate on June 23, 2020. The Court granted Perry's request to file a supplemental Motion, and extended the briefing schedule due to the COVID-19 pandemic. Perry's Motion states nine grounds for relief, alleging that: (1) the Court abused its discretion by allowing Perry to represent himself without first ordering a psychological evaluation; (2) the Government failed to prove all the elements of his crimes; (3) the Court erred in failing to provide a "missing witness" instruction to the jury; (4) the Government improperly disclosed 9-1-1 calls; (5) the Government selectively prosecuted him; (6) the Court erred in allowing a video to be shown to the jury; (7) Perry's pretrial and appellate counsel were ineffective for failing to challenge the search during which the firearm was found; (8) the jury should have decided whether he qualified as an armed career criminal under 18 U.S.C. § 924(e); and (9) the Court erred in instructing the jury that Perry did not have to know about or participate in moving the firearm and ammunition across state lines.

As an initial matter, Perry raised only one of the above grounds for relief on direct appeal—his challenge regarding the Armed Career Criminal Act. Therefore, Perry's eight remaining grounds for relief are procedurally defaulted and fail at the outset. Even if Perry had preserved all his claims on appeal, however, they fail on the merits.

DISCUSSION

A prisoner in custody under [federal] sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Relief under § 2255 "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, not all claims of error in a conviction or sentence are cognizable in a § 2255 proceeding. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc). The petitioner bears the burden to establish that his conviction or sentence violated either the Constitution or federal law. United States v. Hill, 215 F. Supp. 3d 823, 826 (D. Minn. 2016) (Kyle, J.).

Although § 2255 requires a Court to hold an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255(b), a "petition can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Perry's claims are contradicted by the record, and he is not entitled to relief on any of them. The Court therefore declines to hold an evidentiary hearing.

A. Psychological Evaluation

Perry first asserts that the Court abused its discretion by not ordering a psychological evaluation before allowing him to waive his right to counsel at trial. (Pet. (Docket No. 121) at 4-5.) Even if Perry had exhausted this claim on direct appeal, it fails on the merits.

When a defendant seeks to waive his right to counsel, a district court has discretion to order a competency hearing, and need only do so if the court doubts the defendant's competence. United States v. Crawford, 487 F.3d 1101, 1105 (8th Cir. 2007). Previous mental-health diagnoses do not render a person incompetent. See Feguer v. United States, 302 F.2d 214, 236 (8th Cir. 1962). Thus, the fact that Perry had previous mental-health diagnoses did not require the Court to find him incompetent or order a psychological evaluation. (See PSR (Docket No. 84) ¶¶ 65, 66.) Perry provides no support for his claim of mental incompetence.

Moreover, Perry fails to demonstrate that a psychological evaluation would have found him incompetent to waive his right to counsel. Likewise, he does not show that he was prejudiced by his attorney's decision not to request a psychological evaluation.

The Court did not abuse its discretion in failing to order a psychological evaluation. Indeed, the Court found that Perry was more than competent to represent himself. At the close of trial, the Court informed Perry that he had performed better than any pro se litigant whom the Court had observed. (Trial Tr. (Docket Nos. 97-100) at 544.) Perry is not entitled to relief on this ground.

B. Insufficient Evidence

Perry contends that there was insufficient evidence to support his conviction as a felon in possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1). (Pet. at 5-6.) Perry failed to raise this issue on direct appeal; regardless, a claim of insufficient evidence is "not a ground for relief under § 2255." United States v. Gaus, 751 F.2d 1506, 1507 (8th Cir. 1985) (quotation omitted).

Moreover, ample evidence at trial supported Perry's conviction. Viewed in the light most favorable to the verdict, a reasonable jury could have returned a guilty verdict. United States v. Ramirez, 362 F.3d 521, 524 (8th Cir. 2004) (citation omitted). This ground fails.

C. Missing-Witness Instruction

Perry contests that the Court erred by failing to instruct the jury that a witness, J.H., who was unable to positively identify Perry as the shooter, did not testify at trial. (Pet. at 7.) Perry failed to raise this issue on direct appeal.

Before trial, the Government agreed not to seek an in-court identification of Perry by J.H. (Docket No. 43 at 1.) However, a portion of a 9-1-1 call on which J.H.'s voice can be heard was played for the jury. J.H.'s statements were admissible because they fell under the present-sense-impression and excited-utterance exceptions to the rule against hearsay. See Fed. R. Evid. 803(1) and (2).

A missing witness instruction is appropriate when "the government's failure to call a witness 'peculiarly within its power to produce' may give rise to the inference that the witness would have given testimony unfavorable to the government." United States v. Luvene, 245 F.3d 651, 655 (8th Cir. 2001) (quoting United States v. Johnson, 562 F.2d 515, 517 (8th Cir. 1977)). Such an instruction "need not be given unless the defendant shows that the government possesses the sole power to produce the witness." Id.

Here, Perry has not established that J.H. was solely within the Government's power to produce. Indeed, Perry could have called J.H. as a witness, but he did not. (Pet. at 5-11.) Likewise, the Government did not call J.H. as a witness, a fact Perry highlighted tothe jury, accomplishing the aim of the missing-witness instruction he presses. (Trial Tr. at 494-95.). This argument is unavailing.

D. Improper Disclosure of 9-1-1 Calls

Perry argues that the Government "mischievously" placed 9-1-1 phone calls into evidence without his knowledge. (Pet. at 8-9; Def.'s Mem. in Supp. (Docket No. 132) at 4.) This argument is procedurally defaulted because Perry did not object to the disclosure of 9-1-1 calls related to the shooting at trial or raise it on appeal.

In any event, the trial transcript contradicts Perry's improper-disclosure argument. During trial, Perry remarked, "I am going to ask for the 911 calls to be introduced. All of the 911 calls in regards to the shooting." (Trial Tr. at 355.) Per his request, the Government prepared a disc containing all the 9-1-1 calls (id. at 455), and Perry played a portion of the calls for the jury. (Id. at 423-27.) Later, outside the presence of the jury, Perry listened to the remaining calls on the disc and determined that he "didn't find the need to use the other two [calls]." (Id. at 455-57.) Thus, Perry was not unaware that disc contained multiple calls, he simply elected not to play all of the calls for the jury. This ground fails.

E. Selective Prosecution

Perry raises a selective-prosecution claim, contending that the Government "was unjustifiably motivated" to find him guilty and that "ultimately there was a rush for judgment." (Pet. at 10.) Perry did not raise this issue on appeal. In any event, it fails on the merits.

"A selective prosecution claim requires a defendant to show that: (1) people similarly situated to him were not prosecuted; and (2) the decision to prosecute wasmotivated by a discriminatory purpose." United States v....