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Perkins v. C.M.C.F.

United States District Court, N.D. Mississippi, Delta Division

March 5, 2014

FELIX PERKINS Petitioner,
v.
C.M.C.F., ET AL. Respondents.

MEMORANDUM OPINION

GLEN H. DAVIDSON, Senior District Judge.

This matter comes before the court on the pro se petition of Felix Perkins for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Perkins has replied. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.

Facts and Procedural Posture

Felix Perkins, is in the custody of the Mississippi Department of Corrections and is currently housed at the Central Mississippi Correctional Facility in Pearl, Mississippi. Perkins was convicted of Sale, Transfer or Delivery of a Controlled Substance within 1, 500 Feet of a Church in the Circuit Court of Coahoma County, Mississippi. On July 24, 2008, he was sentenced as a habitual offender to serve thirty years in the custody of the Mississippi Department of Corrections ("MDOC"). State Court Record ("SCR"), Vol. 1, p. 30-32.

Perkins filed an appeal of his conviction and sentence in the Mississippi Supreme Court, raising the following issues (as stated by counsel):

Issue 1. Whether the verdict was against the overwhelming weight of the evidence.
Issue 2. In the alternative, whether the appellant was deprived of effective assistance of counsel, depriving appellant of his constitutional right to a fair trial. Counsel presented a theory of defense based on Perkins' testimony that he sold sheetrock to the CR, not cocaine. However, counsel failed to submit any type of jury instruction to support this theory of defense.

On December 1, 2009, the Mississippi Court of Appeals found no merit to these issues and affirmed the judgment of the circuit court. Perkins v. State, 37 So.3d 656 (Miss. Ct. App. 2009), reh'g denied, March 30, 2010, cert. denied, June 24, 2010 (Cause No. 2008-KA-01387-COA).

On September 24, 2010, Perkins filed a pro se Application for Leave to Proceed in the Trial Court with a motion for post-conviction relief ("PCR") in the Mississippi Supreme Court, raising the following issues (as stated by Perkins):

Issue 1. Defective indictment that was unsupported by probable cause.
Issue 2. Perkins denied his right to a fast and speedy trial due to ineffective assistance of counsel.
Issue 3. Ineffective assistance of counsel.
A. Failed to file motion to suppress to quash indictment that was unsupported by probable cause.
B. Trial counsel failed to discredit the state key witness [Ricky Bridges]
C. Failed to file motion to suppress the lab result to determine if the state could establish proper chain of custody.
D. D. The surveillance tape in this case was entered as evidence, although the record does not establish whether it was entered under M.R.E. 401 or 404(b) as required.

The Mississippi Supreme Court found the petition to be without merit and, on November 24, 2010, denied the application. Miscellaneous Pleadings, Cause No. 2008-M-00827.

In the instant Petition for Writ of Habeas Corpus, filed on March 7, 2011, Perkins raises the following issues ( pro se ):

Ground One. Verdict against the overwhelming weight of the evidence.
Ground Two. Ineffective assistance of counsel.
Trial counsel failed to submit[] an instruction on petitioner['s] theory of the case as requested.
Ground Three. A. Denial of right to speedy trial § 99-17-1.
B. Ineffective assistance of counsel
1. Counsel was deficient when he untimely asserted defendant's right to speedy trial March 4, 2008, which was 269 days past arraignment.
2. That trial counsel was deficient in his failure to obtain a ruling on the speedy demand as required.
Ground Four. Ineffective assistance of counsel.
A. Trial counsel failed to properly investigate and suppress the indictment that was defective;
B. Also trial counsel failure to discredit the state key witness Sergeant Ricky Bridges with having two bites at the apple.
Ground Five. Ineffective assistance of counsel.
Trial counsel failed to request that the evidence (surveillance tape) be balance[d] under M.R.E. 403 as required, which ...

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