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Perkins v. Vannoy

United States District Court, W.D. Louisiana, Lake Charles Division

March 7, 2019

BRYCE W. PERKINS D.O.C. # 582440
v.
DARREL VANNOY, ET AL.

         SECTION P

          MEMORANDUM ORDER

          KAY, MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Bryce Perkins, who is represented by counsel in this matter. Perkins is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary at Angola, Louisiana. This matter is before the court on initial review under Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts, and has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I.

         Background

          The appellate record shows that, following a jury trial in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, the petitioner was convicted on February 20, 2011, of one count of second degree murder. State v. Perkins, 124 So.3d 605, 607 (La. Ct. App. 3d Cir. 2013). The trial court granted a post-verdict motion for acquittal, reducing the conviction to manslaughter and then sentencing him to a 30-year term of imprisonment. Id. On appeal from the state, the Louisiana Third Circuit Court of Appeal reinstated the second degree murder conviction and remanded the case for resentencing. Id. The petitioner was resentenced to a mandatory term of life imprisonment without benefit of parole on July 27, 2012. Id. The petitioner then sought review in the Third Circuit, alleging excessive sentence as his sole assignment of error. Id. The Third Circuit reviewed the claim on the merits and denied relief on November 6, 2013. Id. at 607-09.

         The petitioner states that he did not seek further review from this ruling. Doc. 1, p. 3. Instead, he asserts, he next sought relief through an application for post-conviction relief filed in the trial court on November 20, 2014. Id. at 4. There he raised claims of ineffective assistance of counsel and insufficient evidence. Id. He maintains that the trial court denied the application on June 18, 2018, and that the Louisiana Third Circuit Court of Appeal denied writs on January 17, 2019. Id. at 7. He admits that he did not seek writs with the Louisiana Supreme Court. Id. at 15.

         Perkins filed the instant petition through counsel on March 5, 2019. As his sole claim for relief he alleges that his constitutional rights were violated when his trial counsel prevented him from testifying in his own defense. Id. at 6. He provides no memorandum in support of his petition and no supporting facts or law for his claim.

         II.

         Law & Application

         A. Rule 4 Review

         Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed.

         B. Exhaustion and Procedural Default

         Exhaustion and procedural default are both affirmative defenses that may be considered waived if not asserted in the respondent's responsive pleadings. E.g., Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994). However, the federal district court may also consider both doctrines on its own motion. Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Therefore we ...


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