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Perkins v. Cain

United States District Court, M.D. Louisiana

February 28, 2018

STEVE PERKINS #84540
v.
N. BURL CAIN

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         Before the Court is the application of Petitioner Steve Perkins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Petitioner's application should be denied. There is no need for oral argument or for an evidentiary hearing.

         I. Procedural History

         In 1975, Petitioner was convicted of first degree murder and sentenced to death for the killing of Rita DeCuir during the commission of an armed robbery at a grocery store. Petitioner was 17 years old at the time of commission of the offense. Petitioner appealed and, in light of a then-recent decision of the United States Supreme Court concluding that the operative Louisiana homicide statute was unconstitutional, see Roberts v. Louisiana, 428 U.S. 325 (1976), the Louisiana Supreme Court affirmed Petitioner's conviction but concluded that his death sentence should be annulled and that he should be re-sentenced. State v. Perkins, 343 So.2d 730 (La. 1977). In doing so, the Louisiana Supreme Court relied upon a recent decision of that Court in State v. Jenkins, 340 So.2d 157 (La. 1976), which had concluded that, in the absence of a valid death penalty statute, the petitioner should be sentenced to the next most severe penalty established by the legislature for criminal homicide at the time of the offense, i.e., to “imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.” Petitioner was thereafter re-sentenced as indicated on April 6, 1977.

         In February 1989, Petitioner pursued post-conviction relief in the state trial court, asserting that his Sixth Amendment right to confrontation had been violated, that there was insufficient evidence to support the conviction, that he was provided with ineffective assistance of counsel, and that his sentence was not being carried out as indicated because, whereas his sentence seemingly provided for parole eligibility after 20 years, he had been informed that he would not be so eligible upon serving twenty years of his sentence. Petitioner's post-conviction relief application was thereafter denied in the state trial court on June 27, 1989, and his subsequent application for supervisory review before the Louisiana Supreme Court was also denied, without comment, on September 6, 1991. See State ex rel. Perkins v. State, 584 S.2d 671 (La. 1991). Petitioner thereafter filed a federal habeas corpus application before this Court in October 1991, which application was dismissed pursuant to Judgment entered in March 1992.

         After the passage of approximately twenty years, on June 25, 2012, the United States Supreme Court decided the case of Miller v. Alabama, 567 U.S. 460 (2012), wherein it concluded that state sentencing schemes that involve “mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.” Id. at 470. Accordingly, in reliance upon the Miller decision, Petitioner then filed a Motion to Correct Illegal Sentence and Request for Resentencing Hearing in the state trial court. Petitioner's Motion, however, was denied by the state court on September 4, 2013, upon a finding that the Miller decision was not retroactive in application and that it was therefore unavailable to criminal defendants on collateral review of their convictions. The Louisiana Supreme Court thereafter denied supervisory review in connection with that determination on January 9, 2015. See State ex rel. Perkins v. State, 157 So.3d 590 (La. 2015), citing State v. Tate, 130 So.3d 829 (La. 2013).

         Finally, on or about January 28, 2015, Petitioner filed the instant habeas corpus application in this Court, asserting that he is entitled to a new sentencing hearing that does not involve mandatory life without parole and that takes into account his youth at the time of commission of the offense in accordance with Miller v. Alabama. Petitioner also asserted an unrelated claim that his constitutional rights have been violated in connection with the execution of his sentence because he was not provided with parole eligibility after serving twenty years thereof. Inasmuch as Petitioner's application was a second or successive application within the meaning of 28 U.S.C. § 2244(b), this Court transferred Petitioner's application to the United States Court of Appeals for the Fifth Circuit in order for that Court to determine in the first instance whether Petitioner would be granted leave to pursue a second or successive application. See R. Doc. 3. Pursuant to a Ruling issued March 9, 2015, see R. Doc. 4, the Fifth Circuit concluded that Petitioner had “satisfied the minimal prima facie standard for filing a successive § 2254 application” and, referring only to Petitioner's Miller claim, granted Petitioner “tentative” authorization to proceed. The Fifth Circuit Court noted, however, that the District Court “must dismiss Perkins's § 2254 application without reaching the merits, if it determines that Perkins has failed to satisfy the requirements for filing such an application.”

         Upon remand, this Court entered an Order on March 10, 2015 (R. Doc. 6), directing the State to respond to Petitioner's application. On April 13, 2015, the State filed its Response (R. Doc. 10), wherein it asserted that Petitioner's claim should be rejected for the reason that the rule announced in Miller v. Alabama, supra, was not retroactively applicable to petitioners on collateral review of their convictions. Notwithstanding, on January 25, 2016, the United States Supreme Court reached a contrary decision, concluding in Montgomery v. Louisiana, U.S., 136 S.Ct. 718 (2016), that the Miller decision “announced a substantive rule of constitutional law” that is retroactive on state collateral review, abrogating the decision of the Louisiana Supreme Court in State v. Tate, supra. See id., U.S. at, 136 S.Ct. at 736. Accordingly, this Court entered a subsequent Order on October 18, 2017 (R. Doc. 13), directing the State to provide a supplemental memorandum “addressing the effect that the Montgomery v. Louisiana decision may have upon petitioner's claim asserted herein.” The State has now complied with the Court's directive in this regard.

         In responding to Petitioner's application, the State does not dispute that the decision in Miller v. Alabama is retroactive in application in light of Montgomery v. Louisiana. Notwithstanding, the State further contends that Petitioner's claim has since been rendered moot because Petitioner has effectively been statutorily re-sentenced by operation of recent amendments to Louisiana law such that he is now eligible for parole consideration in accordance with certain statutory requirements. The State notes that after the Supreme Court decision in Montgomery, Petitioner filed a new Motion to Correct Illegal Sentence in the state district court in March 2016 and that, with the assistance of counsel, he has been proceeding in state court in connection with that Motion. According to the State, Petitioner has, throughout 2017, been voluntarily continuing scheduled court dates while awaiting anticipated legislative enactments that were expected to modify Louisiana law so as to implement the retroactive effect of the Miller decision. Finally, with the enactment of certain statutory amendments in June 2017, the State contends that Petitioner has effectively been granted the relief requested herein, i.e., a modification of his life-without-parole sentence such that he now has parole eligibility and no longer faces the specter of mandatory life imprisonment without any possibility whatever of release.

         The State's contention appears to be correct. Specifically, effective in June 2017, the Louisiana legislature acted to amend La. Code Crim. P. art. 878.1 to provide that offenders who were indicted for first or second degree murder prior to August 1, 2017, who were under the age of 18 at the time of commission of the offense charged, and who have not been provided with a specialized judicial hearing prior to August 1, 2017 are now statutorily eligible for parole, “without the need of a judicial determination, ” unless the district attorney has filed a timely notice of intent to seek a sentence that does not include parole eligibility. The State further represents that the district attorney has not filed a timely notice of such intent in Petitioner's case, which notice was required to have been filed within 90 days of August 1, 2017. Accordingly, in accordance with the referenced article, Petitioner's sentence to life imprisonment has now effectively been modified by operation of law to provide for parole eligibility “pursuant to R.S. 15:574.4(E), ” which statute has also been amended to enumerate the conditions required for parole consideration in such instance. These conditions include that the offender has ...


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