United States District Court, W.D. Louisiana, Lake Charles Division
BRYCE W. PERKINS D.O.C. # 582440
DARREL VANNOY, ET AL.
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.
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
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.
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.
Rule 4 Review
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.
Exhaustion and Procedural Default
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 ...