MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, District Judge.

This case is presently before the court on Roy E. Perkins's Petition for a Writ of Habeas Corpus by a Person in State Custody under a Death Sentence, (doc. 1),1 seeking relief from his state-court conviction for capital murder and death sentence. Perkins was convicted of capital murder and sentenced to death for the murder of Cathy Gilliam. He has filed this petition seeking habeas relief pursuant to § 2254. For the reasons set forth below, the court finds that Perkins's Petition for a Writ of Habeas Corpus is due to be denied.

TABLE OF CONTENTS

I. THE OFFENSE CONDUCT

The following summary of the evidence relevant to the offense is taken from the opinion of Alabama Court of Criminal Appeals on direct appeal.

Perkins v. State, 808 So.2d 1041, 1052-56 (Ala. Crim. App. 1999), aff'd 808 So.2d 1143 (Ala. 2001), cert. granted and judgment vacated in part sub nom. Perkins v. Alabama, 536 U.S. 953 (2002).

II. THE SENTENCING ORDER

The pertinent portions of the trial court's sentencing order are set forth below:

(Doc. 10, Vol. 24, Tab 45 at 348-54.)

III. PROCEDURAL HISTORY

In April 1994, a Tuscaloosa County jury found Perkins guilty of the capital murder of Mrs. Gilliam and recommended, by a vote of ten to two, that he should be sentenced to death. (Id., Vol. 16, Tab 25 at 2751; id., Vol. 18, Tab 36 at 3019.) On June 3, 1994, the trial court followed the jury's recommendation and sentenced Perkins to death. (Id., Vol. 24, Tab 45 at 354.)

Perkins appealed his conviction and sentence to the Alabama Court of Criminal Appeals, which affirmed in 1999. See Perkins, 808 So.2d 1041. The Alabama Supreme Court affirmed the Court of Criminal Appeals on March 30, 2001. Ex parte Perkins, 808 So.2d 1143 (Ala. 2001).

Perkins petitioned the United States Supreme Court for writ of certiorari. The Court granted his petition. The Supreme Court vacated the judgment and remanded the case "for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L. Ed. 2d 335 (2002)."2 Perkins v. Alabama, 536 U.S. 953 (2002).

On remand, after declining to allow additional evidence to be presented, the Alabama Supreme Court held:

Ex parte Perkins, 851 So.2d 453, 457 (Ala. 2002). The United States Supreme Court denied Perkins's petition for writ of certiorari October 6, 2003. Perkins v. Alabama, 540 U.S. 830 (2003).

Perkins filed a petition for post-conviction relief, commonly referred to as a Rule 32 Petition after Ala. R. Crim. P. 32, in the Circuit Court of Tuscaloosa County on January 29, 2004. The Circuit Court held an evidentiary hearing on some of the claims in Perkins's Rule 32 Petition, as amended. On July 30, 2009, the Circuit Court denied Perkins's Rule 32 petition as amended. (See doc. 10, Vol. 56, Tab 135 at 4488-4534.) Later, on September 3, 2009, the Circuit Court amended its order to deny two claims it had overlooked in its July 2009 order. (See id., Tab 137 at 4551-52.)

Perkins appealed the denial of his Rule 32 Petition and the Court of Criminal Appeals affirmed. Perkins v. State, 144 So.3d 457, 499 (Ala. Crim. App. 2012). The Alabama Supreme Court granted, but later quashed his writ of certiorari. The Supreme Court denied his petition for writ of certiorari on October 6, 2014. Perkins v. Alabama, 135 S.Ct. 56 (2014).

On September 23, 2014, Perkins filed the instant Petition for a Writ of Habeas Corpus by a Person in State Custody under a Death Sentence, pursuant to 28 U.S.C. § 2254.3 (Doc. 1.)

IV. STANDARD OF REVIEW

As to any claim "adjudicated on the merits in State court proceedings," this court may not grant the Petition

. . . unless the adjudication of the claim —

Brumfield v. Cain, 135 S.Ct. 2269, 2288-89 (2015). "Deciding whether a state court's decision involved an unreasonable application of federal law[, § 2254(d)(1),] or was based on an unreasonable determination of fact[, § 2254(d)(2),] requires the federal habeas court to train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner's federal claims, and to give appropriate deference to that decision." Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018)(internal quotations and citations omitted). Nevertheless, "`[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review,' and `does not by definition preclude relief.'" Brumfield, 135 S. Ct. at 2277 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

"When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge." Johnson v. Williams, 568 U.S. 289, 303 (2013). However, "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. That presumption stands unless rebutted by evidence from the state court's decision and the record that leads very clearly to the conclusion that the federal claim was inadvertently overlooked in state court." Pittman v. Sec'y, Fla. Dep't of Corr., 871 F.3d 1231, 1245 (11th Cir. 2017)(internal citations and quotations omitted), cert. denied 139 S.Ct. 102 (2018).

The "backward-looking language" of § 2254(d) "requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court." Cullen v. Pinholster, 563 U.S. 170, 182 (2011). Also, the "[s]tate court decisions are measured against [the Supreme] Court's precedents as of `the time the state court renders its decision.'" Id. (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72 (2003)).

V. EVIDENTIARY HEARING

Perkins has asked the court for an evidentiary hearing on two of his claims — his claim that he is ineligible for the death penalty because he is intellectually disabled and his claim that the prosecution used its peremptory strike in a racially discriminatory manner. "If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) [and (d)(2)] on the record that was before that state court." Cullen, 563 U.S. at 185; see Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015)(applying Cullen to claim brought pursuant to § 2254(d)(2)). "Therefore, before a habeas petitioner may be entitled to a federal evidentiary hearing on a claim that has been adjudicated [on the merits] by the state court, he must demonstrate a clearly established federal-law error[, § 2254(d)(1),] or an unreasonable determination of fact[, § 2254(d)(2),] on the part of the state court, based solely on the state court record." Landers, 776 F.3d at 1295 (emphasis added). "Once a petitioner has demonstrated such an error or unreasonable determination, the decision to grant an evidentiary hearing rests in the discretion of the district court." Id. (internal citations and quotations omitted).

For the reasons set forth below, the court finds that Perkins has not demonstrated his right to relief under § 2254(d), based on the state court record. Therefore, his request for an evidentiary hearing is denied.

VI. DISCUSSION OF PERKINS'S CLAIMS

A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE AND OFFERING A FALSE STIPULATION

Perkins alleges that the State violated Brady v. Maryland4 by failing to disclose a video-taped interview of Candace Gilliam shortly after her mother's murder and that it violated Giglio v. United States5 by insisting that the stipulation as to the content of Candace's testimony include a false statement that she had heard her mother cry, "Rapist," as she was being abducted. For the reasons set forth herein, the court finds that Perkins is not entitled to relief on either claim.

1. Due Process Violation Under Brady v. Maryland

In his Petition, Perkins states:

(Doc. 1 ¶¶ 29-43 [footnotes added].)

Perkins appealed the Rule 32 court's decision and the Alabama Court of Criminal Appeals affirmed the circuit court's decision; it held:

Perkins, 144 So. 3d at 468-69 (footnote added).

In his Petition, Perkins argues, "The state court's ruling that the suppressed video was not material was contrary to and involved an unreasonable application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and was based on an unreasonable determination of the facts in light of the evidence in the record, see 28 U.S.C. § 2254(d)(2)." (Doc. 1 ¶ 45.)

Under clearly-established Supreme Court precedent, "[t]here are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "Such evidence is material `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 280 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985); citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)). "Consequently, the issue before [the court] . . . is legally simple but factually complex. [The court] must examine the trial record, evaluate the withheld evidence in the context of the entire record, and determine in light of that examination whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Turner v. United States, 137 S.Ct. 1885, 1893 (2017). "The question is not whether the defendant would more likely than not have received a different verdict with the [withheld] evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. "In other words, favorable evidence is subject to constitutionally mandated disclosure when it `could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Cone v. Bell, 556 U.S. 449, 470 (2009)(quoting Kyles, 514 U.S. at 435 and citing Banks v. Dretke, 540 U.S. 668, 698-99 (2004) and Strickler, 527 U.S. at 290). "[U]ndisclosed evidence can require a new trial even if it is more likely than not that a jury seeing the new evidence would still convict." Hays v. State of Ala., 85 F.3d 1492, 1498 (11th Cir. 1996).

However, withheld evidence is not material if, when considered in the context of the entire record, "it is too little, too weak, or too distant from the main evidentiary points" of the case. See Turner, 137 S. Ct. at 1894.

Perkins argues:

(Doc. 1 ¶ 55 [footnote omitted].) The court disagrees.9

Perkins's defense to the capital charge was that he did not abduct Mrs. Gilliam with the intent to rape her or otherwise to physically harm her and that he did not intend to kill her when he shot her. Therefore, he was not guilty of kidnapping in the first degree and not guilty of capital murder, although he may have been guilty of a lesser-included offense such as felony murder. The State argued that Perkins abducted Mrs. Gilliam with the intent to rape or sexually assault her. In addition to Candace's statement that she saw her mother being abducted at gunpoint and heard her mother say "something about rapist," the State based its case on two rapes perpetrated by Perkins in the two weeks prior to his kidnaping Mrs. Gilliam; the fact that he had a gun and a knife; the forensic evidence from the truck showing several bullet holes; and the autopsy report.

Considering the entire record, the court finds that the Alabama court's determination — that the withheld video of Candace's interview, in which she said she did not hear what her mother said, is not material and the failure to disclose it did not prejudice Perkins's defense — is not unreasonable. The evidence presented at trial showed that Perkins had raped two women in the days prior to his kidnapping of Mrs. Gilliam. He had a gun and a knife when he took Mrs. Gilliam from her home. However, he did not rape Mrs. Gilliam and, after he shot Mrs. Gilliam, he let her go near Maudeen Hood's house. When she got to Ms. Hood's house, Mrs. Gilliam was able to speak; she told Ms. Hood and first responders that she had not been raped and that Perkins had told her that he did not mean to shoot her.

Other evidence showed that there was a struggle for the gun during which Perkins was shot in the leg and Mrs. Gilliam was shot in the chest. The truck also had gunshot holes in the windshield and the roof of the cab proving multiple gunshots were fired within the cab of the truck. Mrs. Gilliam died from a gunshot wound to the chest that destroyed her liver. No gunpowder residue was found around her wound or on her clothing indicating that she was shot from a distance of about 18 inches. Moreover, there was no hole in her shirt from the gunshot proving that her shirt was not covering her chest at the time she was shot, which may indicate that Perkins was taking her clothes off at the time he shot her. She also had wounds to her neck that appeared to be knife wounds.

In light of these facts whether Candace heard Mrs. Gilliam called out "rapist" or whether, as Candace stated in her first interview, she did not hear what her mother said, does not appear to be material. Mrs. Gilliam was taken from her home at gun point by Perkins, who had raped two women in as many weeks. Perkins shot Mrs. Gilliam in an apparent struggle for the gun and at the time of the shooting Mrs. Gilliam's shirt was raised, exposing her abdomen. There is no question that the State failed to disclose relevant impeachment evidence that it had a duty to disclose. The court finds some possibility that, had Candace testified that she did not hear what her mother said, the jury may have credited the defense's position that Perkins did not kidnap Mrs. Gilliam with the intent to rape her or to otherwise cause her physical harm.

However, "As a condition for obtaining habeas corpus from a federal court, [Perkins] must show that the state court's ruling on [his Brady] claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. at 103 (emphasis added). "Phrased more simply and maybe a little more clearly: if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011)(quoting Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011))(internal quotations omitted).

Considering the evidence at trial in light of Candace's prior statement, the court cannot say that no fair-minded jurist could agree with the Alabama court's decision that "Perkins [had] failed to establish that there [was] a reasonable probability that, had Candace's pretrial statement been disclosed, the outcome of the trial would have been different." Perkins, 144 So. 3d at 469. Although some fair-minded jurists might disagree, trial evidence of the two sexual assaults occurring days before his abduction of Mrs. Gilliam and of Perkins's abduction of Mrs. Gilliam at gunpoint — even assuming Mrs. Gilliam did not say anything about a rapist — is strong evidence that Perkins abducted Mrs. Gilliam with the intent to sexually assault her. Therefore, the Alabama court's decision that Perkins did not establish a Brady violation is entitled to deference.

Based on the foregoing, the court finds that Perkins is not entitled to any relief based on his claim that he was denied due process by the prosecution's failure to disclose the tape of Candace's initial interview.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

2. Due Process Violation under Napue v. Illinois and Giglio v. United States

Perkins alleges that "the State's knowing false representation about Candace Gilliam's testimony constituted a due process violation under Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972)." (Doc. 1 ¶ 41.) He argues:

(Doc. 1 ¶ 60 [emphasis added].) He contends that the Alabama court's decision "adjudicated the claim on the merits and denied relief . . . [w]ithout reaching the question of whether the false testimony was material . . . because Perkins had not called Candace Gilliam to testify at the Rule 32 hearing." (Id. ¶ 62.) Therefore, he contends that the state court's decision is not entitled to any deference because —

(Id. ¶¶ 64-69.)

The Court of Criminal Appeals rejected Perkins's claim on appeal; it held:

Perkins, 144 So. 3d at 469-70.

Supreme Court law "has long been established that the prosecution's `deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.'" Banks, 540 U.S. at 694 (quoting Giglio, 405 U.S. at 153 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)))(emphasis added). Nothing in any Supreme Court case implies that a habeas petitioner can state a claim based on the prosecutor's knowing presentation of false testimony or failure to correct testimony he knows to be false without showing that the testimony is actually false; or that a prosecutor has deliberately presented known false evidence when he represents the substance of a witness's statement without equivocation, even though the witness has given inconsistent statements over the course of an investigation. Other than proof of the undisclosed interview, Perkins failed to show that the prosecutors knew the stipulation — Candace heard her mother cry "rapist" — was false.

The law is well established that:

United States v. McNair, 605 F.3d 1152, 1208-09 (11th Cir. 2010)(emphasis added). In dicta the Supreme Court has held, "A mere claim that a witness gave inconsistent testimony is not enough to charge the prosecution's knowing use of false testimony; it may well be that the witness'[s] subsequent statements were true, in which event the claim of inconsistency is not a constitutional objection." Price v. Johnston, 334 U.S. 266, 288 (1948)(citing Mooney). Although some fair-minded jurists might disagree, the Alabama court's decision — that Perkins failed to prove a Giglio violation because he did not prove that the stipulated testimony was, in fact, false, as opposed to merely inconsistent with Candace's pretrial interview — was not contrary to or an unreasonable application of clearly established law or an unreasonable determination of the facts.

Based on the foregoing, the court finds that Perkins is not entitled to any relief based on his claim that he was denied due process by the prosecution's presentation of false testimony or failure to correct false testimony.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

B. THE STATE TRIAL COURT VIOLATED PERKINS'S RIGHT TO COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR PRETRIAL PREPARATIONS

Perkins claims, "The state trial court violated [his] right to counsel by removing his lawyers, who had represented [him] for a year and were willing to continue representing him, where there was no serious potential for a conflict of interest or any other harm, and removal served no legitimate state interest." (Doc. 1 ¶ 72.) He alleges:

(Doc. 1 ¶¶ 73-79 and n.8 [footnote 7 omitted].)

On direct appeal, the Alabama Court of Criminal Appeals found:

Perkins, 808 So. 2d at 1059-60. The Court of Criminal Appeals held:

Id. at 1060. The court found "a clear potential for conflict in this case," for the PDO and the State based on "Fields's employment with the office representing Perkins, after his involvement in the investigation of Mrs. Gilliam's death, combined with the possibility that he may have been called as a witness for the State at Perkins's trial." Id. at 1061. Therefore, it found "no abuse of discretion on the part of the trial court in exercising its own scrutiny to ensure a fair trial to both sides in a case" by disqualifying the [PDO], id. and "no abuse of discretion in the trial court's rejection of Perkins's offer to waive the potential conflict," id.

Perkins contends that "[t]he state court's decision [affirming the trial court's disqualification of the PDO] is contrary to or involves an unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), and is based on an unreasonable determination of the facts in light of the evidence in the record, 28 U.S.C. § 2254(d)(2)." (Doc. 1 ¶ 81.) Specifically he contends that the decision of the Court of Criminal Appeals, which was based on a finding of a clear potential for conflict rather than a serious potential for conflict, is contrary to Supreme Court precedent. (Doc. 1 ¶¶ 84-85 [citing, inter alia, Wheat, 486 U.S. at 162-64](emphasis added).) He contends that the Alabama court's decision represents an unreasonable application of Supreme Court precedent because the risk that the public defender "would have been prevented from doing anything if Fields had been called to testify for the State," which Perkins describes as the "touchstone of a conflict," is nonexistent. (Id. ¶ 86 [citing, inter alia, Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978)].) And, Perkins contends, the Alabama court's decision, that a potential conflict of interest existed, "was based on an objectively unreasonable determination of the facts," because "[t]he record clearly establishes that Fields's only relationship to the [investigation of his] case was supervising the processing of a truck." (Id. ¶ 87.)

Generally, Supreme Court precedent establishes that —

Luis v. United States, 136 S.Ct. 1083, 1089 (2016). "The [trial court] must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Wheat, 486 U.S. at 164.

Supreme Court precedents do not clearly establish a constitutional right to continued representation of appointed attorneys, see United States v. Parker, 469 F.3d 57, 61 (2d Cir. 2006)(Sotomayor, J.), or continued representation when a potential conflict arises because of a side-switching, non-attorney employee without a waiver of the conflict by both sides.10 Although Fields may have performed limited hands-on work on the investigation of Mrs. Gilliam's murder, he was present as a supervisor during the processing of an important piece of evidence, the truck; he was privy to sensitive information regarding the investigation and other investigations by virtue of his position as second in command;11 and the record contains no indication that any effort was made to isolate Fields from the PDO's representation of Perkins or to maintain the confidential information possessed by Fields. Under the particular facts of this case12 and in light of the lack of controlling Supreme Court precedent addressing a similar fact situation, the court finds that deference to the decision of the Alabama Court of Criminal Appeals is warranted.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has the burden under 28 U.S.C. § 2254(e)(1) to rebut the state court's factual determinations as to this issue with clear and convincing evidence. He has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

C. FAILURE TO GRANT A CHANGE OF VENUE

Perkins alleges that "[t]he state trial court violated [his] right to an impartial jury by forcing him to be tried in a community that had been saturated with publicity and [that] feared [him]." (Doc. 1 ¶ 91.) According to Perkins, "75 percent of veniremembers admitted to having been exposed to substantial pretrial publicity about the crime [and] [s]even members of [his] jury admitted to being exposed to pretrial publicity by radio, television, newspapers, or word of mouth." (Id. ¶ 99.) He contends, "The publicity had three interconnected aspects that constitute a departure from ordinary, objective news coverage," (id. ¶ 93):

"This combination of factors created a risk that jurors would view their role as empowered victims taking the protection of their community into their own hands instead of serving their constitutionally mandated role as skeptical buffer between Perkins and the power of the government to imprison and execute him." (Id. ¶ 106.)

In his Petition, Perkins argues that the state court erred in failing to examine the totality of the circumstances to find "implied juror bias." (Id. ¶ 105). He contends that the state-court decision is "contrary to or an unreasonable application of clearly established federal law because the court failed to determine whether jurors were impliedly biased based on the `totality of circumstances,' [and] [i]nstead, . . . based its finding that jurors were not impliedly biased solely on `the media materials presented to the trial court.'" (Id. ¶ 108 [citing Murphy, 421 U.S. at 799; quoting Perkins, 808 So. 2d at 1069].) He alleges (1) "the state court examined the transcript of voir dire only to determine whether jurors were actually biased in fact, not to determine whether a presumption of prejudice arose based on the totality of the circumstances," and (2) "the state court completely failed to consider as part of the totality of the circumstances the statements of public officials about the crime, the victimization of the community, the emotional narrative of the prosecution's case, or the extensive and inherently prejudicial collateral-act evidence that the prosecution put before the jury, much of it keyed to media reports." (Id.) Also, "Assuming that the state court properly considered the totality of the circumstances," Perkins contends that "its conclusion that there was no implied bias[,] and thus no presumed prejudice[,] . . . involve[s] an unreasonable application of clearly established federal law." (Id. [citing, inter alia, Abdul-Kabir v. Quarterman, 550 U.S. 233, 258 (2007)].) Finally, he argues, "The state court decision [that the media coverage was relatively objective is] an unreasonable determination of the facts in light of the evidence in the record," because (1) "[m]ost of the articles adopted the perspective of actual victims, . . . potential victims, . . . and law enforcement officers," and (2) an article published the day before trial "described the community's steadfast belief that Perkins was guilty, its refusal to forgive, and its overwhelming support for sentencing him to death." (Id. ¶ 109.)

On direct appeal, the Alabama Court of Criminal Appeals held:

Perkins, 808 So.2d 1068-70.

In his Petition, Perkins challenges the state court's finding regarding a presumption of prejudice; he does not challenge the court finding that his jury was not actually prejudiced by pretrial publicity. Generally —

Brecheen v. Oklahoma, 485 U.S. 909, 910 (1988)(Marshall, J., dissenting from denial of cert.)(emphasis added).

"A presumption of prejudice, [Supreme Court] decisions indicate, attends only the extreme case." Skilling v. United States, 561 U.S. 358, 379-81 (2010)(citing, inter alia, Sheppard v. Maxwell, 384 U.S. 333, 354-55, 358 (1966), Estes, 381 U.S. at 536-38, Rideau, 373 U.S. at 725-27); see also Mills v. Singletary, 63 F.3d 999, 1010 (11th Cir. 1995)("[T]he principle of presumed prejudice is rarely applicable and reserved for extreme situations.")(internal quotations and citations omitted). "[P]retrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976), quoted in Skilling, 561 U.S. at 384. And, "A high level of publicity is not necessarily inconsistent with the ability of the defendant to obtain a fair trial where the publicity has been largely factual in nature or where it abated some time prior to trial." Gannett Co. v. DePasquale, 443 U.S. 368, 443 (1979)(Blackmun, J., concurring in part and dissenting in part)(citing Murphy, 421 U.S. at 802; Beck v. Washington, 369 U.S. 541, 542-45, 557-58 (1962); Stroble v. California, 343 U.S. 181, 191-94 (1952))(internal citations omitted; emphasis added). "[T]he Supreme Court has ruled that we cannot presume prejudice in the absence of a `trial atmosphere . . . utterly corrupted by press coverage.'" United States v. Campa, 459 F.3d 1121, 1144 and n.198 (11th Cir. 2006)(quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)(quoting Murphy, 421 U.S. at 798)). "[T]he `quantum' of the publicity does not, standing alone, create a presumption that a defendant was denied a fair trial by an impartial jury. . . . [T]he nature of the publicity and whether it is the sort that could be laid aside by jurors, rather than its volume, is the crucial factor to be considered." Davis v. Jones, 441 F.Supp.2d 1138, 1167-68 (M.D. Ala. 2006)(internal citations and quotations omitted), aff'd, 506 F.3d 1325 (11th Cir. 2007).

Although the nature of the murder, the character and criminal history of Perkins, and the subsequent manhunt received a great deal of media coverage in August 1990, nothing in the record indicates that media coverage created "bedlam" or a "carnival atmosphere" at the time of the trial in April 1994. See Skilling, 561 U.S. at 380 (quoting Sheppard v. Maxwell, 384 U.S. 333, 355 (1966)).13 The articles are primarily factual, focused on the kidnaping and murder of Mrs. Gilliam, Perkins's criminal history, the ensuing manhunt, and the sentiment in the community during August 1990. Media coverage after this time was limited and each member of the venire was questioned about their exposure to news coverage.

In addition to the volume and the content of the media coverage, another factor the court must consider in the totality of the circumstances is the timing of the adverse pretrial publicity. In this case, the majority of the media stories included in the record occurred at the time of the crime and the subsequent manhunt in August 1990. Two articles were published in the Tuscaloosa newspaper the Sunday before jury selection began in April 1994 — "a time when prejudicial publicity was greatly diminished. . . ." See Patton v. Yount, 467 U.S. 1025, 1032 (1984); see also Skilling, 561 U.S. at 383 (noting "the decibel level of media attention diminished somewhat in the [four] years" between Enron's bankruptcy and Skilling's trial). "That time soothes and eases [public sentiment] is a perfectly natural phenomenon, familiar to all." Patton, 467 U.S. at 1034-35. These articles and word-of-mouth discussions occurring at or near the time of jury selection do not reveal a "barrage of inflammatory publicity immediately prior to trial, amounting to a huge . . . wave of public passion." Id. at 1033 (internal citations and quotations omitted). "[T]he passage of time . . . can be a highly relevant fact. In the circumstances of this case, . . . it clearly rebuts any presumption of partiality or prejudice that [may have] existed at the time of [the crime and the subsequent manhunt]." See id. at 1035.

Another factor the court should consider is "the credibility of prospective jurors who indicate during voir dire that they could be impartial despite having been exposed to pretrial publicity about the case." United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir. 1992). This court has considered the extensive voir dire in this case and finds that the majority of prospective jurors had not closely followed the media coverage of this case. And, the twelve jurors and two alternates selected to serve on the jury appear to have "credibly asserted that they could remain impartial." Id. at 1525. No evidence from these venire members indicates otherwise.

Therefore, the court finds "the totality of the circumstances provides no basis for concluding that `the community was . . . so inflamed and biased [ ] as to create a presumption of prejudice that a fair and impartial jury panel could not be impaneled.'" Id. (quoting United States v. De La Vega, 913 F.2d 861, 865 (1990)). The court finds no error in the state court's judgment that the majority of the articles were objective. "[E]xtensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair." Dobbert, 432 U.S. at 303. Moreover, the opinions and feelings of crime victims and community members are "facts" and articles reporting such facts are objective reports — unlike editorials or opinion pieces.

Based on the circumstances of this case, including the entire record of the voir dire of the venire, the newspaper articles submitted with the appeal record, and the transcripts of the hearings on Perkins's motion for change of venue, the court finds Perkins has not demonstrated that the decision of the Alabama Court of Criminal Appeals was contrary to or an unreasonable application of Supreme Court precedent or that its decision was an unreasonable determination of the facts.

For all the foregoing reasons, this claim is without merit and is due to be denied.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR TRIAL AND RELIABLE SENTENCE

Perkins contends that his "Fourteenth Amendment right to a fair trial and Eighth Amendment right to a reliable determination of sentence" were violated by the trial court's admission of collateral-act evidence of two rapes, which occurred in the two weeks before he killed Mrs. Gilliam; the facts surrounding the incident at Darlene Hall's house, the theft of the gray truck, which contained the murder weapon, and the trial court's sua sponte failure to give a limiting instruction. (Doc. 1 ¶ 111.) He alleges:

(Doc. 1 ¶¶ 112-20; 135-37 [footnotes added].)

1. Overlooked Claims or Presumed Ruling on the Merits

Perkins contends that the Alabama Court of Criminal Appeals "failed to address [his] claim[s] that the unlimited admission of the [collateral-act] evidence" violated his right to due process under the Fourteenth Amendment and his right to a reliable sentence under the Eighth Amendment. (Id. ¶ 122.) Therefore, this court "should review [his] claim[s] de novo because [they were] overlooked by the Alabama Court of Criminal Appeals." (Id. ¶ 123.)

With regard to his claim that collateral-acts evidence was improperly admitted, the Alabama Court of Criminal Appeals held that admission of this evidence was not error — "plain or otherwise," and it defined "plain error" as "error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Perkins, 808 So. 2d at 1084-85, 1088, 1092, 1093 (quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997)). The Alabama Supreme Court has noted that "a review under the plain error rule, which guarantees a defendant a fundamental right to fairness, is tantamount to a due process review." Pace v. State, 714 So.2d 332, 337 (Ala. 1997)(quoting Ex parte Myers, 699 So.2d 1285, 1296-98 n.4 (Ala. 1997)); see also Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005)("We see no practical distinction between the formulations of plain error in Thornburg [v. State, 985 P.2d 1234, 1242 (Okla. Crim. App. 1999),] and Cleary [v. State, 942 P.2d 736, 752-53 (Okla. Crim. App. 1997),] and the federal due-process test, which requires reversal when error `so infused the trial with unfairness as to deny due process of law,' Estelle [v. McGuire], 502 U.S. [62,] 75 [(1991)]. Because the [Oklahoma Court of Criminal Appeals] applied the same test we apply to determine whether there has been a due-process violation, we must defer to its ruling unless it `unreasonably appli[ed]' that test. 28 U.S.C. § 2254(d).").

Nevertheless, the court does not decide whether the Alabama court decided Perkins's federal constitutional claims on the merits by deciding that the evidentiary rulings were not plain error, because it finds no error based on a de novo review of these claims.

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

2. Admission of Evidence of Prior Acts and Perkins's Right to Due Process

(Doc. 1 ¶¶ 125-30.)

"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(citing 28 U.S.C. § 2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975))(footnote omitted). "In our system of justice, [a] fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution." Perry v. New Hampshire, 565 U.S. 228, 231-32 (2012). "Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine." Id. at 232 (emphasis added). Therefore, only when the state court's ruling with regard to the admission of evidence is alleged to have deprived the petitioner of his right to due process will a federal habeas court consider whether that error was of such magnitude that it denied petitioner's right to a fundamentally fair trial in violation of the due process clause. See Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994)(citing, inter alia, Lisenba v. California, 314 U.S. 219, 228 (1941)). "As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [the court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba, 314 U.S. at 236-37 (emphasis added).

Chambers v. Mississippi, 410 U.S. 284, 294 (1973). "But apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten that the proceeding is more a spectacle or trial by ordeal than a disciplined contest." United States v. Augenblick, 393 U.S. 348, 356 (1969)(citing Rideau v. Louisiana, 373 U.S. 723, 726 (1963); and Brown v. Mississippi, 297 U.S. 278, 285 (1936))(internal citations omitted).

Perkins claims that the admission of collateral-act evidence denied him due process pursuant to the Fourteenth Amendment and a reliable sentence under the Eighth Amendment. He argues:

(Doc. 1 ¶¶ 131-33 [footnote added].)

However, "As [the Supreme Court] held in Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L. Ed. 2d 1 (1994), it is not the role of the Eighth Amendment to establish a special `federal code of evidence' governing `the admissibility of evidence at capital sentencing proceedings.'" Kansas v. Carr, 136 S.Ct. 633, 644 (2016)(quoting Romano, 512 U.S. at 11-12). "Rather, it is the Due Process Clause that wards off the introduction of `unduly prejudicial'18 evidence that would render the trial fundamentally unfair." Id. (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991); citing Brown v. Sanders, 546 U.S. 212, 220-21 (2006))(footnote added; internal quotations omitted). Therefore, Perkins may not challenge the admission of collateral-act evidence at his sentencing proceeding under the Eighth Amendment. "The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence `so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process.'" Id. at 644-45 (quoting Romano, 512 U.S. at 12).

The issue for this court is whether the admission of the collateral-act evidence — admitted during either the guilt phase, the sentencing phase, or both — violated Perkins's right to due process by so infecting his proceedings with unfairness as to deny him a fundamentally fair trial.

a. Evidence of the Rapes of D.W. and B.P.

On direct appeal, the Alabama Court of Criminal Appeals held as follows:

In Bradley v. State, 577 So.2d 541 (Ala. Cr. App. 1990), this court stated:

Perkins, 808 So. 2d at 1080-85.

Under the circumstances, the court finds that the trial court did not abuse its substantial discretion in admitting the evidence of the two rapes occurring just days before Perkins's abduction and murder of Mrs. Gilliam. The evidence of two sexual assault crimes occurring shortly before the abduction of Mrs. Gilliam was relevant proof that Perkins intended to sexually assault Mrs. Gilliam when he abducted her. The fact that the State proved the two rapes in "meticulous detail" was not error under Alabama law. Nothing in the record suggests this evidence was false or misleading. Moreover, Perkins had an unimpeded opportunity to challenge the evidence. Therefore, the court finds that the admission of the evidence of the rapes of B.P. and D.W. did not violate Perkins's right to due process.

b. Incident at Darlene Hall's House

Perkins also challenges collateral-act evidence consisting of "Darlene Hall describ[ing] an episode involving a man she identified as Perkins attempting to use her telephone shortly before Cathy Gilliam was abducted, supplemented by testimony of law enforcement personnel." (Doc. 1 ¶ 116 [citing doc. 10, Vol. 11, Tab 19 at 1756-81; id., Vol. 12 at 1978-84].)

The Alabama Court of Criminal Appeals held:

Perkins, 808 So. 2d at 1085-88 (emphasis in original).

The court finds the trial court did not abuse its discretion in allowing Mrs. Hall's testimony regarding her encounter with Perkins minutes before he abducted Mrs. Gilliam. At trial, Perkins argued that he did not intend to abduct Mrs. Gilliam, but that he had abducted her only after she had surprised him when she came outside as he was looking around her trailer. His attempt to gain entry to Mrs. Hall's home and his leaving only after she said, aloud, that she was going to shoot him, would support a reasonable inference that he intended to abduct Mrs. Gilliam and that he carried a weapon to better his chances of successfully doing so. The evidence was relevant to show that Perkins intended to abduct Mrs. Gilliam because he had a weapon after he had failed to abduct Mrs. Hall because he was unarmed.

Perkins does not allege that Mrs. Hall's testimony was false or misleading. As it was relevant, not only to prove the circumstances immediately preceding his abduction of Mrs. Gilliam, but also to challenge his assertion that he did not intend to abduct Mrs. Gilliam, the court finds Perkins's right to due process was not violated by admission of Hall's testimony.

c. The Gray Truck and the .357 Magnum Handgun

Perkins challenges as improper collateral-act evidence "statements and testimony [that] suggested that [he] was a thief." (Doc. 1 ¶ 116 [citing doc. 10, Vol. 11, Tab 17 at 1727-28; id., Vol. 13 at 2061].) With regard to this evidence, the Alabama Court of Criminal Appeals held:

Perkins, 808 So. 2d at 1090-93 (emphasis added).

The court finds that the record does not support Perkins's claim that the evidence of the gray truck and the .357 suggested he was a thief. Moreover, even if the trial court admitted evidence that Perkins had stolen the truck, which contained the murder weapon, such evidence was not false or misleading. Certainly, nothing about this evidence violated Perkins's right to due process.

3. Failure to Give Limiting Instruction

Perkins contends that the trial court's failure to give a jury instruction limiting the jury's use of the collateral-act evidence violated his right to a fair trial and a reliable sentence. The Alabama Court of Criminal Appeals held:

Perkins, 808 So. 2d at 1092-93.

In order to determine whether the omission of a limiting instruction violated Perkins's constitutional right to due process, the court must consider whether the lack of such an instruction "infected the entire trial [so] that the resulting conviction [and sentence] violated due process." Henderson v. Kibbe, 431 U.S. 145, 156-57 (1977).

Kibbe, 431 U.S. at 154-55. In a case addressing a federal defendant's claim that the lack of a limiting instruction, when no such instruction was requested, violated his right to due process, the Eleventh Circuit held:

United States v. Peaden, 727 F.2d 1493, 1501 (11th Cir. 1984).

In this case, the failure of the trial court to sua sponte instruct the jury that it could not consider the collateral-acts evidence — the two rapes, the incident at Mrs. Hall's house, and the theft of the gray truck, which contained a .357 magnum handgun — as evidence that Perkins had the propensity to commit violent and/or criminal acts did not result in a fundamentally unfair trial. As set forth above, evidence of the rapes of B.P. and D.W., including the details, was admitted as relevant evidence of Perkins's intent and motive when he abducted Mrs. Gilliam. Evidence of the incident at Mrs. Hall's house was relevant and admissible to prove Perkins's actions immediately preceding his abduction and murder of Mrs. Gilliam,19 as well as his intent and motive. And, evidence that Perkins had stolen the gray truck and the murder weapon was not before the jury, but the jury did hear that Perkins was driving the gray truck, the gray truck had contained the murder weapon, Mrs. Gilliam's blood and bullet holes were evident in the truck when it was found after her murder, and the blood and bullet holes had not been in the truck in the days preceding Mrs. Gilliam's abduction and murder. In light of the relevancy of this evidence in proving Perkins's actions on the day of the murder of Mrs. Gilliam, as well as his intent and motive, the failure to give a limiting instruction — an instruction telling the jury they could not consider this evidence to find that Perkins should be convicted because he was a bad person or had the propensity to commit violent and/or criminal acts but that they could consider the evidence to decide why Perkins abducted Mrs. Gilliam and what he intended to do to her when he abducted her — did not result in a fundamentally unfair trial.

Based on the foregoing, the court finds that neither the admission of the collateral-act evidence nor the failure to sua sponte give a limiting instruction violated Perkins's due process rights at either the guilt or sentencing phase of his trial. Therefore this ground for habeas relief will be denied.

CONCLUSION

The court finds that Perkins has failed to demonstrate the admission of collateral-acts evidence and the failure of the trial court to give the jury a limiting instruction violated his right to due process. Therefore, Perkins is not entitled to habeas relief on this ground.

E. SUFFICIENCY OF THE EVIDENCE

Perkins argues that Alabama violated his rights under the Due Process Clause of the Fourteenth Amendment because "the record evidence does not support a capital murder conviction because no rational juror could have found beyond a reasonable doubt that Perkins formed the specific intent to kill Cathy Gilliam." (Doc. 1 ¶ 138 [citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)].) He points to the following direct and circumstantial evidence in support of his contention that "[a]ny rational juror would have held grave doubts about Perkins's intent," (id. ¶¶ 140-42):

(Doc. 1 ¶¶ 141-42.) Perkins argues that the state court violated his right to due process by finding the evidence was sufficient to support the jury's verdict; as noted above, he argues, "Any juror would have held grave doubt about [his] intent." (Id. ¶ 140.)

The Supreme Court has established the following standard for reviewing a state-court determination of the sufficiency of evidence on habeas review:

Cavazos v. Smith, 565 U.S. 1, 2 (2011)(per curiam).

In Alabama, "To sustain a conviction under § 13A-5-40(a)(1), Ala. Code 1975, for the capital offense of murder during a kidnapping, the State must prove beyond a reasonable doubt: (1) a kidnapping in the first degree, as defined by § 13A-6-43(a),20 or an attempt thereof; (2) an intentional murder, as defined by § 13A-6-2(a)(1);21 and (3) that the murder was committed `during' the course of the `kidnapping or attempted kidnapping.'" Butler v. State, 781 So.2d 994, 997 (Ala. Crim. App. 2000)(footnotes added). "The question whether a defendant intentionally caused the death of another person is a question of fact for the jury," and "Intent may be inferred from the use of a deadly weapon or from other attendant circumstances." Ex parte Carroll, 627 So.2d 874, 878 (Ala. 1993)(internal citations omitted). Moreover, "a statement by a defendant," including pretrial statements, "if disbelieved by the jury, may be considered as substantive evidence of the defendant's guilt, particularly when the elements to be proved for a conviction include highly subjective elements like the defendant's intent or knowledge." United States v. Shabazz, 887 F.3d 1204, 1220 (11th Cir. 2018)(quoting United States v. Brown, 53 F.3d 312, 314, 315 (11th Cir. 1995)(internal quotations omitted); United States v. Alejandro, 118 F.3d 1518, 1521 (11th Cir. 1997)("The jury could . . . properly consider appellant's false exculpatory statements upon his arrest as substantive evidence of his guilty intent." (citing United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984))).

The Alabama Court of Criminal Appeals set forth the following evidence as sufficient to establish Perkins's guilt of the offense of capital murder during a kidnapping:

Perkins, 808 So. 2d at 1112-13 (footnote omitted).

Perkins argues that the evidence was insufficient to support a finding that he intended to kill Mrs. Gilliam because (1) he told Mrs. Gilliam and the arresting officer that he did not mean to kill Mrs. Gilliam, and (2) he took Mrs. Gilliam to Mrs. Hood's house. Clearly, a rational factfinder could reject Perkins's statements and actions after fatally shooting Mrs. Gilliam as irrelevant to his intentions at the time he shot her. "[T]he question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve." Connolly v. State, 500 So.2d 57, 63 (Ala. Crim. App. 1985)(citing Crowe v. State, 435 So.2d 1371, 1379 (Ala. Cr. App. 1983)), aff'd 500 So.2d 68 (Ala. 1986). Actions and/or expressions of remorse after the murder does not compel a finding, as a matter of law, that the killing was unintentional. Certainly, the jury could have considered Perkins's actions following the fatal shooting of Mrs. Gilliam as demonstrating his lack of intent, but it was not required to accept his argument that his actions proved that he did not intend to kill Mrs. Gilliam at the time he shot her. Under Alabama law, the fact that he shot her after kidnaping her under circumstances that would allow a finding that he intentionally pulled the trigger is sufficient to support the jury verdict of capital murder.

Therefore, the court finds Perkins is not entitled to relief based on his argument that there was insufficient evidence to convict him of the capital murder of Mrs. Gilliam.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

F. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

1. Standard of Review

The Supreme Court's "benchmark" for judging any claim that trial counsel provided ineffective assistance is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). The Court's opinion in Strickland established a two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial:

Id. at 687; see Williams v. Taylor, 529 U.S. 362, 390 (2000); Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001). The two parts of the Strickland standard are conjunctive; a petitioner bears the burden of proving both "deficient performance" and "prejudice" by "a preponderance of competent evidence." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)(en banc). However, a court is not required to address both aspects of the Strickland standard when a habeas petitioner makes an insufficient showing on one of the two prongs. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)("Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.").

a. The Performance Prong

"The burden of persuasion is on the petitioner to prove by a preponderance of the evidence that counsel's performance was unreasonable." Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007)(citing Chandler, 218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a petitioner must prove that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The standard for gauging attorney performance is "reasonableness under prevailing professional norms." Id. at 688; see Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Darden v. Wainwright, 477 U.S. 168, 184 (1986); Chandler, 218 F.3d at 1313. "The test of reasonableness is not whether counsel could have done something more or different," but whether counsel's performance "fell within the broad range of reasonable assistance at trial." Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d at 1313). "Furthermore, [the court] must recognize that omissions are inevitable. But, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled." Id. (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987))(internal quotations omitted). The Sixth Amendment does not guarantee a defendant the very best counsel or the most skilled attorney, but only counsel that performs within reasonable professional norms. "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. [The court] ask[s] only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial." White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).

The reasonableness of counsel's performance is judged from the perspective of the attorney at the time of the alleged error and in light of all the circumstances. See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001)(giving lawyers "the benefit of the doubt for `heat of the battle' tactical decisions"); Mills v. Singletary, 161 F.3d 1273, 1285-86 (11th Cir. 1998)(noting that Strickland performance review is a "deferential review of all of the circumstances from the perspective of counsel at the time of the alleged errors").

Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotations and citation omitted); see also Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)(holding that, "[w]hen reviewing whether an attorney is ineffective, courts should always presume strongly that counsel's performance was reasonable and adequate" (internal quotations omitted)). "Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Id. at 693.

b. The Prejudice Prong

"A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high." Van Poyck v. Florida Department of Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002). "It is not enough for the [habeas petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693; see also Harrington, 562 U.S. at 112 ("The likelihood of a different result must be substantial, not just conceivable."). Instead, to prove prejudice, the habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see Williams, 529 U.S. at 391. In the context of the death sentence itself, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695).

In order to satisfy this high standard, a petitioner must present competent evidence proving "that trial counsel's deficient performance deprived him of `a trial whose result is reliable.'" Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir. 2001)(quoting Strickland, 466 U.S. at 687). In other words, "[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect." Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001)(quoting Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996)(quoting Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)))(internal quotation marks omitted).

c. Deference Accorded State Court's Decisions

When the state court has adjudicated a petitioner's ineffectiveness claims on the merits, the findings of historical facts made in the course of evaluating that claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d)(2) and (e)(1). See Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome the state court's finding of fact, the petitioner must show that those findings were unreasonable in light of the evidence before the state court and carry his burden of proving the facts by clear and convincing evidence. Deference to a state court's resolution of a claim of ineffective assistance involves a double layer of reasonableness. Under the AEDPA, the federal habeas court may grant relief on such a claim only if the state court determination involved an "unreasonable application" of Strickland to the facts of the case. As noted, Strickland requires an assessment of whether counsel's conduct was professionally unreasonable and whether such conduct resulted in actual prejudice. The assessment of the reasonableness of the state court determination and the assessment of the alleged attorney error cannot be conflated into one. See Harrington, 562 U.S. at 101-02. Thus, habeas relief on a claim of ineffective assistance of counsel can be granted with respect to a claim decided on the merits by the state court only if the habeas court determines that it was "objectively unreasonable" for the state court to find that counsel's conduct was not "professionally unreasonable" or did not result in actual prejudice. The Harrington Court explained,

Harrington, 562 U.S. at 105; see also Premo v. Moore, 562 U.S. 115, 123 (2011).

With these standards in mind, the court turns to Perkins's allegations of ineffective assistance of counsel.

2. Failure to Strike Juror V.H.

Perkins contends that trial counsel were ineffective because they failed to remove a biased juror, juror V.H. (See doc. 1 ¶ 154.) He alleges:

(Id. ¶¶ 155-63 [footnotes added].) He alleged counsel's performance was deficient and that prejudice should be presumed because of V.H.'s actual and implied bias. (See id. ¶¶ 167, 189-93, 195-96.)

The Rule 32 court found —

(Doc. 10, Vol. 56, Tab 63 at 4493.)

The Alabama Court of Criminal Appeals rejected Perkins's ineffective-assistance claim on appeal from the Rule 32 Order; it held:

State v. Tennyson, 850 P.2d 461, 469-70 (Utah Ct. App. 1993).

Perkins v. State, 144 So.3d 457, 472-75 (Ala. Crim. App. 2012)(emphasis added; footnote omitted).

In order to establish that his trial counsel were constitutionally ineffective for failing to strike V.H., Perkins must prove deficient performance — no reasonable attorney would have seated V.H. — and prejudice — "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Alabama court found that seating V.H. was not deficient performance based on V.H.'s answers to questions during voir dire and counsel's focus on the penalty phase of the trial, and, because Perkins did not show V.H. was actually biased, he had not established Strickland prejudice.

Perkins contends that V.H. was actually biased, (doc. 1 ¶¶ 170-74), and that she was impliedly biased, (id. ¶¶ 176-81). He also contends that counsel's failure to remove a biased juror should be presumed prejudicial. (Id. ¶ 195.)

The court notes that V.H. did not indicate during voir dire that she was biased. Also, nothing was presented during post-conviction proceedings that she had been actually biased against Perkins during deliberations. Therefore, the court finds the Alabama court's factual determination that defense counsel was not on notice that V.H. was actually biased was not unreasonable.

Perkins contends that V.H., due to the circumstance of her being a victim of rape by a relative and her daughters being victims of rape, was impliedly biased against him. "The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law," — "a bias attributable in law to the prospective juror regardless of actual partiality." United States v. Wood, 299 U.S. 123, 133-34 (1936)(emphasis added). Bias of a juror is implied in "some extreme situations," including "a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction." Smith v. Phillips, 455 U.S. 209, 222 (1982)(O'Connor, J., concurring; emphasis added). However, "being a victim of criminal acts did not disqualify [V.H.] from serving" based on implied bias. See United States v. Lopez, 445 Fed. Appx. 190, 193 (11th Cir. 2011)(citing United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983)). "[A] rape victim as a matter of law [is not] incapable of being impartial in the trial of an accused rapist." Gonzales v. Thomas, 99 F.3d 978, 989 (10th Cir. 1996). "To hold that no rape victim could ever be an impartial juror in a rape trial would, we think, insult not only all rape victims but also our entire jury system, which is built upon the assumption that jurors will honestly try `to live up to the sanctity of [their] oath.'" Id. at 989-90 (quoting Dennis v. United States, 339 U.S. 162, 171 (1950)); see also Owen v. Fla. Dep't of Corr., 686 F.3d 1181, 1197-98 (11th Cir. 2012);25 Fields v. Brown, 503 F.3d 755, 774 and n.12 (9th Cir. 2007)("Being the spouse of a rape victim is not, in and of itself, such an `extreme' or `extraordinary' situation that it should automatically disqualify one from serving on a jury in a case that involves rape.")(citing, inter alia, Jones v. Cooper, 311 F.3d 306, 312-13 (4th Cir. 2002)("The mere fact that the juror's relatives had a history of arrests and jury trials certainly does not reach the high standard needed for the implication of bias."); United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997)(Just as we have refused to carve out an overly broad category of presumed bias based on occupational or status relationships, so we also decline to hold as a general matter that, where a juror has engaged in conduct similar to that of the defendant at trial, the trial judge must presume bias. Such cases are unlikely to present the "extreme situations" that call for mandatory removal. The exclusion of Juror No. 7 was, therefore, not compulsory.")(emphasis in original; footnote omitted)).

As noted by the Court of Criminal Appeals, "The voir dire was extensive," and, in particular, "V.H. responded that she did not believe that the death penalty was a deterrent to crime, that she believed that a sentence of life in prison was warranted in some cases, that she would have to weigh all the evidence in regard to punishment,26 and that voting whether a defendant lived or died was a very grave responsibility." See Perkins, 144 So. 3d at 473 (footnote added). The fact that V.H. had personal experience as a rape victim and that members of her family were rape victims, when considered together with her answers during voir dire, does not demonstrate that trial counsel knew or should have known she was biased, actually or implicitly, against Perkins. Given this information, and considering trial counsel's statements they exercised their strikes based on a weighing of their choices among prospective jurors, see Perkins, 144 So. 3d at 473 (quoting trial counsel as stating, "when striking a jury it `depends on who else [is] on the jury' and who `may be better or worse choices,'" and "`striking a jury is a weighing process, that you look at the positives and the negatives [and] you have people that you wouldn't really want on there, but you don't. . . end up striking them for other reasons'")(citations omitted), the court finds that the Alabama court's determination, that trial counsel's performance was not deficient because a reasonable attorney could have chosen not to challenge for cause or to use a peremptory challenge to exclude juror V.H., was not unreasonable and/or contrary to Strickland.

Therefore, Perkins's ineffective-assistance claim based on counsel's failure to exclude V.H. from the panel will be denied.

Assuming that Perkins had established that his counsel's performance was deficient, the court finds that Perkins has not established Strickland prejudice.

Perkins contends that the Alabama court did not address the prejudice prong on Strickland. The court disagrees. The Court of Criminal Appeals held that Perkins had not established that V.H. was actually biased against him in order to establish prejudice. See Perkins, 144 So. 3d at 472 ("The appellant's claim of ineffective assistance of counsel is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim that a biased juror prejudiced him, however, the appellant must show that the juror was actually biased against him. To show attorney error and prejudice in defense counsel's failure to use peremptory strikes for biased veniremen, it is necessary for the appellant to show that the veniremen did indeed harbor actual bias against the appellant.")(quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995); Parker v. Turpin, 60 F.Supp.2d 1332, 1362 (N.D. Ga. 1999))(internal citations and quotations omitted); id. at 75(noting the lack of evidence that V.H. was actually biased). The United States Supreme Court has not decided whether a habeas petitioner must prove actual bias of a juror to established prejudice sufficient to support an ineffective assistance of counsel claim based on the seating of a particular juror. Therefore, the Alabama court's decision requiring Perkins to show actual bias to prove Strickland prejudice is not contrary to any Supreme Court precedent.

Also, even if a petitioner could establish prejudice based on the implied bias of a juror, the petitioner is still required to establish that, in fact, a biased juror sat on his jury. "To `show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' [the petitioner] must show that at least one juror was biased; if no juror were biased, then there is no `reasonable probability that . . . the result of the proceeding would have been different.'" Owen, 686 F.3d at 1201 (quoting Strickland, 466 U.S. at 694)(emphasis added); see Brown v. Jones, 255 F.3d at 1280 (holding petitioner alleging ineffective assistance based on counsel's failure to ask reverse Witherspoon questions during voir dire had failed to show Strickland prejudice because he had "failed to adduce any evidence that any juror was biased in favor of the death penalty"); see, e.g., Villanueva v. Stephens, 555 Fed. Appx. 300, 306 (5th Cir. 2014)("[U]nder Strickland, a petitioner alleging deficient performance during jury selection must identify `any particular juror [who] was in fact prejudiced' and must establish that had counsel's questioning focused on a specific area of bias, the bias would have been found." (quoting Neville v. Dretke, 423 F.3d 474, 483 (5th Cir. 2005)))(emphasis added); Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004)("Establishing Strickland prejudice in the context of juror selection requires a showing that, as a result of trial counsel's failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased." (citing United States v. Quintero-Barraza, 78 F.3d 1344, 1349 (9th Cir. 1995))). Other than alleging a personal history that is significant for rape, Perkins has not demonstrated that V.H. was biased against him — either actually or implicitly.

Therefore, Perkins is not entitled to relief based on this ineffective-assistance claim. He has not shown that trial counsel were constitutionally ineffective for failing to strike V.H.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or that it applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

3. Failure to Request a Limiting Instruction

Perkins contends that his counsel was ineffective because they failed to request jury instructions limiting the jury's consideration of "the extensive collateral-act evidence presented by the State." (Doc. 1 ¶ 198.) He alleges:

(Id. ¶¶ 199-217 [emphasis in original].)

The Rule 32 court held:

(Doc. 10, Vol. 56, Tab 135 at 4493.) The Alabama Court of Criminal Appeals affirmed the decision. Perkins, 144 So. 3d at 478-80.

As set forth above, a petitioner seeking to vacate his conviction based on ineffective trial counsel must prove both that counsel's performance was deficient and that their deficient performance prejudiced the petitioner. Chandler, 218 F.3d at 1313. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687.

Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002).

As to Perkins's claim that his trial counsel were ineffective for failing to ask for a limiting instruction, the court finds the Alabama court's decision, that Perkins's counsel were not constitutionally ineffective, was reasonable.

The court applies a presumption that trial counsel's conduct "might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Id.

"[T]he decision not to request a limiting instruction is solidly within the accepted range of strategic tactics27 employed by trial lawyers in the mitigation of damning evidence. If the lawyer cannot stop the evidence from being admitted, it is perfectly rational to decide not to draw further attention to it by requesting a motion for limiting instruction." United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996)(citing Biggerstaff v. Clark, 999 F.2d 1153, 1155 (7th Cir. 1993)). Citing to testimony that Stevens could not recall a strategic reason for not asking for a limiting instruction, Perkins argues that the state court's factual determination that the failure to ask for a limiting instruction was a strategic decision was unreasonable. The court disagrees.

The decision not to request a limiting instruction is "presumed" to be sound trial strategy. See Burt v. Titlow, 571 U.S. 12, 23 (2013)("It should go without saying that the absence of evidence cannot overcome the `strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'")(quoting Strickland, 466 U.S. at 689). As the Eleventh Circuit has noted:

Castillo v. Fla., Sec'y of Dept. of Corrections, 722 F.3d 1281, 1285 n.2 (11th Cir. 2013). Therefore, "[a]lthough courts may not indulge `post hoc rationalization' for counsel's decisionmaking that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions." Harrington, 562 U.S. at 109 (citing Wiggins v. Smith, 539 U.S. 510, 526-27 (2003)).

Counsel's testimony, that they do not remember what their strategy was, does not overcome this presumption — especially in light of counsel's testimony that they knew they were entitled to a limiting instruction if requested.

Blankenship v. Hall, 542 F.3d 1253, 1274 (11th Cir. 2008). "An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption of effective representation. Therefore, `where the record is incomplete or unclear about counsel's actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.'" Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir. 2001)(quoting Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir.2000)(quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir.1999)))(internal quotations omitted). "The mere absence of the instruction neither overcomes this presumption nor satisfies [petitioner's] burden to show deficient performance." Thomas v. Vannoy, 651 Fed. Appx. 298, 303 (5th Cir. 2016)(citing Burt, 571 U.S. 12, 22-23 (2013))(footnote omitted).

Moreover, the decision not to request a limiting instruction is generally a reasonable strategic decision because such an instruction —

Vannoy, 651 Fed. Appx. at 303; see also United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996)("Indeed, the decision not to request a limiting instruction is solidly within the accepted range of strategic tactics employed by trial lawyers in the mitigation of damning evidence. If the lawyer cannot stop the evidence from being admitted, it is perfectly rational to decide not to draw further attention to it by requesting a motion for limiting instruction."); Williams v. Armontrout, 912 F.2d 924, 934 (8th Cir. 1990)("the decision not to request [a limiting instruction on the other crimes evidence] was a reasonable, strategic choice designed to avoid highlighting [defendant's] other undesirable activities").

This court finds that the state court's determination with regard to the performance prong of this ineffective assistance claim was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. Therefore, Perkins's claim for relief based on counsel's failure to request a limiting instruction will be denied.

Also, in this case, the failure to request a limiting instruction did not prejudice Perkins. Because the evidence of the rapes of D.W. and B.P. were admissible to prove motive and intent necessary to prove kidnapping in the first degree, a limiting instruction telling the jury that they could not use the evidence to prove propensity would have made little or no difference in the outcome of Perkins's trial and/or sentence.

Generally, a limiting instruction that is given when evidence is admitted for a specific purpose follows this format: First, the jury is told that the evidence was admitted for a particular and limited purpose and that it can be considered by the jury for that purpose — as proof of the specific element, such as motive or intent. Second, the jury is told the purpose it cannot consider that evidence to prove — such as whether defendant committed the crime alleged in the indictment. See 1 Ala. Pattern Jury Instr. Civ. 15.08 (3d ed.)("Some of the evidence in this case is admitted for a limited purpose. The evidence (describe the evidence) is admitted only for (describe the purpose). You cannot consider it (describe what it cannot be used for). You will consider this evidence with the rest of the evidence, but only for the purpose it was admitted."); see also 1A Fed. Jury Prac. & Instr. § 17:08 (6th ed.);28 Pattern Crim. Jury Instr. 11th Cir. S4.1 (2016)("During the trial, you heard evidence of acts allegedly done by the Defendant on other occasions that may be similar to acts with which the Defendant is currently charged. You must not consider any of this evidence to decide whether the Defendant engaged in the activity alleged in the indictment. This evidence is admitted and may be considered by you for the limited purpose of assisting you in determining whether [the Defendant had the state of mind or intent necessary to commit the crime charged in the indictment] [the Defendant had a motive or the opportunity to commit the acts charged in the indictment] . . . .").

In this case, the evidence was not disputed that Perkins had abducted Mrs. Gilliam; however, his intent and motive for taking Mrs. Gilliam was disputed. Evidence that Perkins had abducted and raped two women in the days preceding the abduction of Mrs. Gilliam was offered to prove why he had abducted Mrs. Gilliam and what he intended to do with her when he abducted her. Therefore, a limiting instruction would have informed the jury that they could consider the evidence that Perkins had kidnapped and raped two women just days before he took Mrs. Gilliam to prove he intended to rape or sexually abuse Mrs. Gilliam. Because the evidence was admitted for this substantive purpose, the jury would be specifically instructed, in essence, that they could consider the evidence of the rapes of D.W. and B.P. for the purpose of proving that Perkins intended to do the same thing to Mrs. Gilliam and that was his reason for taking her. See, e.g., United States v. McNeal, 591 Fed. Appx. 760, 764 (11th Cir. 2014)(Jury instructed "that, if other evidence convinced them beyond a reasonable doubt that [defendant] had committed the charged acts [of drug possession with intent to distribute], they could consider the prior [drug trafficking] convictions for intent, motive, opportunity, plan, preparation, or identity, or to determine whether the acts were committed accidentally."). As for the second part of the limiting instruction, the jury would be told that they could not consider the evidence for the purpose of finding Perkins was a bad person and/or that they should punish him for his raping D.W. and B.P. See, e.g., id. (Jury instructed "not to use the prior convictions to determine whether [defendant] committed the charged acts."). Under the circumstances of this case, this distinction between evidence of intent and evidence of propensity does not seem so great as to support a finding by this court that, had it been instructed on the difference, the jury might possibly have returned a different verdict or sentence.

The state court found no such possibility of a different result. This court finds that the state court's determination with regard to the prejudice prong of this ineffective assistance claim was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. Therefore, Perkins's claim for relief based on counsel's failure to request a limiting instruction will be denied.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

4. Failure to Investigate and Present Available Mitigating Evidence

In his Petition, Perkins contends that his "trial counsel were ineffective for failing to investigate and present available mitigating evidence in a reasonable manner." (Doc. 1 ¶ 245.) In support of this claim, he alleges:

(Doc. 1 ¶¶ 246-62 and nn. 57-58 [footnote added; internal footnotes omitted except as noted].)

The Alabama Court of Criminal Appeals held:

Perkins, 144 So. 3d at 491.

As set forth above, a petitioner seeking to vacate his conviction based on ineffective trial counsel must prove both that counsel's performance was deficient and that the deficient performance prejudiced the petitioner. Chandler, 218 F.3d at 1313. "Unless a [petitioner] makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687. "Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the [petitioner] cannot meet the prejudice prong, or vice versa." Holladay, 209 F.3d at 1248. In this case, Perkins has not shown that he was prejudiced by counsel's alleged errors in investigating and presenting mitigating evidence; therefore the court pretermits discussion of whether the alleged errors constituted deficient performance under Strickland.

"Under Strickland, a defendant is prejudiced by his counsel's deficient performance if `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Porter v. McCollum, 558 U.S. 30, 40 (2009)(quoting Strickland, 466 U.S. at 694). That is, a petitioner "must show that[,] but for his counsel's deficiency, there is a reasonable probability he would have received a different sentence," and "[t]o assess that probability, [the court] consider[s] the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — and reweigh[s] it against the evidence in aggravation." Id. at 41 (quoting Williams, 529 U.S. at 397-98)(internal quotations omitted).

Perkins alleges that he was prejudiced by counsel's failure to talk to his sister and to present her testimony during the penalty phase of his trial. At the Rule 32 stage, Perkins filed the affidavit of his sister, Kathy Hocutt. The affidavit contains the first-hand account of the horrifying childhood of Ms. Hocutt and Perkins, her brother, including continuing violent sexual abuse by her stepfather, a neglectful alcoholic mother, and extreme poverty and deprivation. Perkins argues that Ms. Hocutt's first-hand testimony "is significant because the three witnesses who testified at [his penalty phase — Ms. Snow, Mr. Owens, and Dr. Goff —] admitted that they [had] based their testimony[,] not on personal observations, but on reports from either secondhand sources or from Perkins." (Doc. 15 at 115 [citing doc. 10, Vol. 17, Tab 31 at 2966; id., Vol. 18, Tab 34 at 2981].) As previously noted, however, Ms. Hocutt was unable to testify in person before the sentencing jury, (see doc. 10, Vol. 64 at 482); therefore, her testimony, by necessity, could only be presented secondhand by her written statement, the admissibility of which was doubtful at the time of Mr. Perkins's trial, or through another person, whose testimony would be subject to challenge as hearsay.

Even if Ms. Hocutt's statements had been admitted and considered by the sentencing jury and the trial judge, the weight of that evidence to mitigate Perkins's punishment is limited by the remoteness of the abuse and poverty suffered by Perkins as a child to the adult Perkins's murder of Mrs. Gilliam. See Anderson v. Sec'y, Fla. Dep't of Corr., 752 F.3d 881, 908 (11th Cir. 2014)("Although evidence of sexual abuse may constitute a mitigating circumstance, `[w]hen a defendant is several decades removed from the abuse being offered as mitigation evidence its value is minimal.'")(quoting Callahan v. Campbell, 427 F.3d 897, 937 (11th Cir. 2005)); Callahan, 427 F.3d at 937 ("The mitigation evidence offered at the Rule 32 hearing primarily concerned physical abuse Callahan suffered as a child, yet Callahan was 35 when he committed the crime. When a defendant is several decades removed from the abuse being offered as mitigation evidence its value is minimal." (citing Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990)); Francis, 908 F.2d at 703 ("Given the particular circumstances of this case including, among other things, the fact that [defendant] was thirty-one years old when he murdered [the victim], evidence of a deprived and abusive childhood is entitled to little, if any, mitigating weight." (citing Francois v. Wainwright, 763 F.2d 1188, 1191 (11th Cir. 1985)); Washington v. State, 95 So.3d 26, 45 (Ala. Crim. App. 2012)("Moreover, Washington was 55 years of age when he committed the murders. We question, as have other courts, the mitigation value of evidence of school records and childhood experiences when a defendant is 55 at the time of the offense.")(citing Francis, 908 F.2d 696, 703). See also Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) ("Eddings was a youth of 16 years at the time of the murder. Evidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation. In some cases, such evidence properly may be given little weight. But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant.").

In this case, "[t]he sentencing jury [and the trial judge were] . . . `well acquainted' with [Perkins's] background," of a horrific and impoverished childhood. See Wong v. Belmontes, 558 U.S. 15, 23 (2009). The second-hand account of Ms. Snow, as well as testimony of Dr. Goff and Mr. Owens, presented an accurate picture of Mr. Perkins's past, which was credited by the trial court. Indeed, the sentencing judge found these "non-statutory mitigating circumstances" existed: (1) Perkins "lacked socialization and had a horrible childhood, involving the death of his father, the drowning of his brother in his presence, the sexual abuse of his sister by his stepfather in his presence, physical abuse of Defendant by his stepfather, being run away from home at a very early age and being sexually abused," and (2) Perkins "and his family were very poor, and Defendant had to `raise himself'[, and] [h]is mother and stepfather and other family members were alcoholics." (Doc. 10, Vol. 2 at 352-53.) Due to Ms. Hocutt's inability to testify in person, the benefits of presenting her testimony second-hand, even if admissible, "would have offered an insignificant benefit, if any at all." See Wong, 558 U.S. at 22-23 (Court of Appeals held that trial counsel "should have presented more humanizing evidence;" Supreme Court found that trial counsel had presented "substantial mitigation evidence, much of it targeting [a] `humanizing' theme," and that "[a]dditional evidence on this [theme] would have offered an insignificant benefit, if any at all").

The court also finds that counsel's failure to offer expert testimony that Perkins would not present a danger in prison did not prejudice Perkins. Such evidence would not have altered the balance between the aggravating and mitigating circumstances. Dr. Strickland's testimony at the R. 32 hearing, explaining the effects of his childhood on Perkins's development and her conclusion — that he would not be dangerous in prison — was "neither complex nor technical" and her conclusions "required only that the [sentencer] make logical connections of the kind a layperson is well equipped to make" between information already in evidence. Id. at 24. "The [sentencer] simply did not need expert testimony to understand [that Perkins would not be dangerous in prison]; it could use its common sense or own sense of mercy." Id. at 23-24. This seems to be a straight-forward conclusion because all of Perkins's past violent or dangerous acts have been visited upon women, and, in prison, he would have little, if any, opportunity to violate another woman. Nevertheless, considering Dr. Strickland's testimony, the court finds it would not significantly change the balance of aggravating and mitigating factors.

When asked "[w]hy [Perkins's] behavior [was] so different in prison," Dr. Strickland responded —

(Doc. 10, Vol. 64 at 529-30.) Her testimony, however, was not so different in meaning from the so-called "killing words" of Owens's testimony. At the penalty phase, Mr. Owens testified:

(Doc. 10, Vol. 17 at 2824-26, 2833-35, 2837-39.)

At the Rule 32 hearing, Dr. Strickland testified that Perkins had an impaired ability to empathize and that, although he might know right from wrong, he was unable to conform his behavior due to ingrained behaviors and "scripts" from his childhood:

(Doc. 10, Vol. 64 at 520-23.)

As the above quoted testimony shows, both Dr. Strickland and Mr. Owens testified that Perkins's ability to empathize and to control his behaviors was compromised because of his experiences as a child. Given the similar nature of the experts' findings and testimony, the court finds that weighing Dr. Strickland's testimony, together with evidence presented during the sentencing phase and Ms. Hocutt's affidavit, does little to shift the balance between the aggravating and mitigating factors.

The sentencing court found that the statutory aggravating factors outweighed the statutory and non-statutory mitigating factors.30 (See doc. 10, Vol. 2, at 353-54.)

The court finds that "[t]he new material," Dr. Strickland's testimony and Ms. Hocutt's affidavit, "is . . . not so significant that, even assuming [Perkins's] trial counsel performed deficiently, it was necessarily unreasonable for the [Alabama court] to conclude that [Perkins] had failed to show a `substantial' likelihood of a different sentence." Cullen v. Pinholster, 563 U.S. 170, 202 (2011)(citing Richter, 562 U.S. at 111-12 (citing Strickland, 466 U.S. at 693))). Based on this evidence, the court finds that Perkins is not entitled to any relief based on his claim that he was denied a fair trial by the deficient performance of his trial counsel in investigating and presenting mitigation evidence.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

5. Failure to Challenge Perkins's Rape Conviction

Perkins contends that his trial counsel were ineffective for failing to investigate and challenge his Fayette County conviction for the rape of B.P. (Doc. 1 ¶¶ 218-40.) He alleges:

(Id. ¶¶ 218-30, 233-35, 238-39, 243 [original footnotes omitted; footnotes added].)

The Alabama Court of Criminal Appeals rejected this claim:

When denying relief on this claim, the circuit court stated:

[(Doc. 10, Vol. 58 at 4493.)]

At the postconviction evidentiary hearing, Perkins introduced an affidavit executed by attorney Steven Nolen. Nolen wrote that he had been appointed to represent Perkins in two rape charges in Fayette County and that he had also represented Perkins's uncle, who had been charged with hindering prosecution by assisting Perkins in avoiding apprehension for those rape charges. Nolen stated:

[(Id., Vol. 60 at 5233.)]

At trial, when proof of Perkins's 1991 guilty-plea conviction for rape was introduced during the penalty phase, Steverson objected, stating that the waiver of conflict of counsel was dated the day after Perkins pleaded guilty. The court overruled counsel's objection. Steverson testified at the evidentiary hearing that he did not challenge Perkins's rape conviction by filing a postconviction petition in Fayette County and that he had never filed a postconviction petition attacking one of his client's prior convictions. The trial record also shows that extensive testimony was introduced at the guilt phase concerning Perkins's 1991 conviction. The victim testified, in depth, concerning the facts surrounding the conviction. The record affirmatively shows that counsel was not ignorant concerning the facts and circumstances of Perkins's 1991 rape conviction.

In Hamm v. State, 913 So.2d 460 (Ala. Crim. App. 2002), we addressed a similar issue and stated:

913 So. 2d at 479 (emphasis in original).

Our neighboring State of Georgia in Barker v. Barrow, 290 Ga. 711, 723 S.E.2d 905 (2012), addressed whether counsel was ineffective for failing to research a prior guilty-plea conviction the State intended to use to enhance the defendant's sentence. That court, in declining to find counsel ineffective, stated:

290 Ga. at 713-15, 723 S.E.2d at 908-09.

Perkins, 144 So. 3d at 480-84.

As set forth above, in order to succeed on this ineffective-assistance claim, Perkins must show that his trial counsel's performance was defective and that he was prejudiced by this defective performance. When reviewing a claim of ineffective assistance of counsel in a habeas petition this court is not required to decide both deficient performance and prejudice prongs because the petitioner's claim will fail if he cannot show both prongs. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)("Because both parts of the [Strickland] test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa." (citing Strickland, 466 at 694; internal citations omitted)). Also, if the court finds, pursuant to de novo review, that the claim is without merit, it need not discuss whether the state court's decision is entitled to deference. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010)("Even if the state court used an incorrect legal standard, we need not determine whether AEDPA's deferential standard of review, 28 U.S.C. § 2254(d), applies in this situation. That is because, even if AEDPA deference does not apply, [petitioner] cannot show prejudice under de novo review, the more favorable standard of review for [petitioner].. . . Courts can . . . deny writs of habeas corpus under §2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).").

As to this claim — alleging that Perkins was denied the assistance of constitutionally effective counsel because counsel failed to discover the untimely-executed waiver of Nolen's conflict of interest and, thus, did not file a collateral challenge to his conviction in Fayette County — the court finds, on de novo review, that Perkins cannot establish prejudice; therefore, this claim will be denied.

In order to establish that trial counsel were ineffective for failing to investigate and collaterally challenge his prior rape conviction from Fayette County, Perkins is required to show that counsel's deficient performance prejudiced him — that is, there is a reasonable probability that the result of the proceeding would have been different had his trial counsel collaterally challenged the Fayette County conviction. To make this showing, Perkins must show as an initial matter that the collateral challenge to the Fayette County conviction had merit.

The fact that Nolen represented Perkins and Watkins simultaneously, the fact that Watkins's deal depended on Perkins's guilty plea, and the fact that Perkins signed the waiver of Nolen's conflict of interest after he pled guilty do not show an actual conflict of interest sufficient to void the Fayette County rape conviction. "[I]t was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel's performance," Mickens v. Taylor, 535 U.S. 162, 174 (2002); that is, Nolen's simultaneous representation of Perkins and his uncle adversely affected Nolen's performance as Perkins's counsel.

Contrary to Perkins's assertion, his Fayette County conviction is not "invalid" based on the lack of a timely-signed waiver. In order to show that the collateral challenge to the Fayette County conviction based on a conflict of interest would have been successful, Perkins "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); see also Molton v. State, 651 So.2d 663, 669 (Ala. Crim. App.1994)("The appellant did not raise the matter of a conflict of interest on the part of his trial counsel until well after the trial. Consequently, in order to establish a violation of the Sixth Amendment, he must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." (quoting Sullivan, 446 U.S. at 348))(internal quotations omitted).

Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999)(internal citations and quotations omitted). "[Petitioner] must make a factual showing of inconsistent interests and must demonstrate that the attorney `made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.'" United States v. Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)(quoting Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J. CRIM. L. & CRIMINOLOGY 226, 232 (1977)). Generally,

Id. (quoting United States v. Benavidez, 664 F.2d 1256, 1259 (5th Cir. 1982)).

None of these "rubrics" have been shown in this case; therefore, the court finds that Perkins has not shown an actual conflict sufficient to support the reversal of his Fayette County rape conviction. No one involved in Perkins's Fayette County case objected to Nolen's representation of Perkins or otherwise "brought [the alleged conflict] to the trial court's attention at the outset of the trial or at the time when the conflict first became apparent." Benavidez, 664 F.2d at 1259. Nothing in Nolen's Affidavit or otherwise shows that Watkins "had evidence that would have exculpated himself but inculpated [Perkins]." See id. Moreover, proof of Perkins's guilt on the rape charge was required to prove Watkins's guilt on a hindering-prosecution charge, see Nichols v. State, 500 So.2d 92, 94-95 (Ala. Crim. App. 1986);34 therefore, "the prosecution's evidence [did not] offer[ ] Watkins a theory under which he could prove his own innocence by proving [Perkins's] guilt," see Benavidez, 664 F.2d at 1259.

Perkins's waiver of Nolen's conflict of interest, signed the day after he entered his plea of guilty does not demonstrate an actual conflict of interest based on Nolen's representation of Perkins of the B.P. rape charge and Watkins on the charge of hindering the prosecution of Perkins on the rape charge. He has shown only that Nolen represented two defendants in related cases and that one defendant's deal required the antecedent guilty plea of the other defendant — which in the context of claims of hindering prosecution is not indicative of an actual conflict of interest adversely affecting Nolen's representation. Because Perkins has not shown that the Fayette County rape conviction was "invalid" based on an actual conflict of interest and an untimely waiver, he has not shown that earlier discovery of the untimely waiver by his trial attorneys would have made any difference in his conviction and/or sentence in the instant case. Thus, there is no Strickland prejudice.

From the beginning of their representation of Perkins, Smith and Steverson, Perkins's trial counsel, knew that Perkins had raped B.P. and that he had pled guilty to that crime. They knew that, as a result of his guilty plea, he was sentenced to 99 years in prison. However, before sentencing in the capital case, trial counsel learned that Nolen, Perkins's counsel in the Fayette County case, obtained a waiver of any conflict of interest between his representation of Perkins and his representation of Perkins's uncle, who had been charged with hindering the prosecution of Perkins for the rape of B.P. The waiver was signed the day after Perkins had pled guilty in Fayette County. Although the waiver was obtained after Perkins's plea, that fact alone does not establish that trial counsel's failure to collaterally challenge the Fayette County conviction prejudiced Perkins. Indeed, the untimely-executed waiver, standing alone, does not establish an actual conflict that adversely affected Fayette County counsel's performance.

Nothing indicates that Perkins has ever denied raping B.P. or that, had the conflict not existed, he would not have pled guilty. Perkins alleges, "Nolen had an active conflict because he could not get Raymond Watkins a favorable plea deal unless he counseled Perkins to plead guilty to first-degree rape." (Doc. 1 ¶ 230.) Such a statement implies that Perkins had other options and that he would not have pled guilty unless encouraged by Nolen because of Nolen's desire to get a good deal for Watkins. This conjecture regarding the outcome of a collateral attack on the Fayette County rape conviction is insufficient to establish prejudice based on the alleged deficient performance of Steverson and Smith in discovering the untimely-executed waiver. Assuming that reasonable counsel, knowing what trial counsel knew, would have collaterally challenged the Fayette County conviction, there is no reasonable probability that the result of the capital case would have been different. Given the fact that Perkins does not deny raping B.P. and he does not allege that he would not have pled guilty to first degree rape, he has not shown a reasonable possibility that at the time of his capital sentencing he would not have a felony conviction for the first degree rape of B.P.

Therefore, this claim will be denied.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

G. THE JURY'S CONSIDERATION OF EXTRINSIC EVIDENCE — THE BIBLE IN THE JURY ROOM

Perkins contends that he "was denied a fair trial and reliable determination of sentence," in violation of the Due Process Clause because the jury "consulted biblical passages prior to and during its sentencing deliberations." (Doc. 1 ¶ 285.) According to Perkins —

(Doc. 1 ¶¶ 287-88.) The only Bible passage J.T. remembered specifically being discussed was "the one that was the eye for an eye." (Doc. 10, Vol 64 at 384.) However, he testified that he had based his decision to impose the death penalty "on the evidence and what all [he had] heard in the . . . trial," and that the readings from the Bible did not help him make his decision. (Id. at 393, 395.) No other juror testified at the Rule 32 hearing.

The Alabama Court of Criminal Appeals held, "J.T. testified that the Bible had no impact on his verdict in the penalty phase. No other jurors testified. Without more, this Court cannot say that the [trial] court abused its discretion in finding that Perkins failed to establish prejudice. Accordingly, this claim does not entitle Perkins to any relief." Perkins, 144 So. 3d at 494-99.

Perkins was "entitled to a verdict based on the independent judgment of twelve jurors. Jury deliberations are kept private and secret to ensure that the verdict represents the judgment of a properly constituted jury and is not affected by outside influences or matters extrinsic to evidence presented at trial." United States v. Watson, 669 F.2d 1374, 1391 (11th Cir. 1982). The Supreme Court "generally [has] analyzed outside intrusions upon the jury for prejudicial impact." United States v. Olano, 507 U.S. 725, 738 (1993)(citations omitted).

Id. at 738-39 (emphasis added). When a defendant alleges improper intrusion upon a jury's deliberations, generally "courts apply a settled two-step framework." See Godoy v. Spearman, 861 F.3d 956, 959 (9th Cir. 2017).

Id. (quoting Remmer v. United States, 347 U.S. 227, 229-30 and Mattox v. United States, 146 U.S. 140, 150 (1892), called into doubt on other grounds by Warger v. Shauers, 135 S.Ct. 521, 526-27 (2014))(internal quotations and citations omitted; emphasis added).

In this case, the trial court held such a hearing as part of the Rule 32 hearing. The only juror to testify was J.T. He testified that the service on Sunday "didn't have an effect on [him]." (Doc. 10, Vol. 63 at 379 to Vol. 64 at 380.) Also, the only specific Bible passage he could recall being discussed in the jury room was "the eye for an eye."35 (Id., Vol. 64 at 391.) This Bible verse was also referenced by counsel and prospective jurors during voir dire. (See id., Vol. 6 at 796; id., Vol. 7 at 875, 881, 982, 998, 999, 1002; id., Vol. 8 at 1096, 1224; id., Vol. 9 at 1231, 1246-47, 1322; id., Vol. 10 at 1469-70). The court finds that the "eye for an eye" Bible verse is within the common knowledge of all jurors and had specifically been discussed with them during jury selection. While the jury was discussing whether Perkins should receive the death penalty, the jury "said a little prayer . . . to try to ease our mind, to comfort us into making that decision." (Id., Vol. 64 at 384.)

The only juror to testify, J.T., did not have a Bible in the jury room and he did not read a Bible in the jury room. (Id. at 390.) He based his decision "on the evidence and what all [he] heard in the . . . trial." (Id. at 393; see also id. at 395.) The court finds that Perkins has not established, through J.T.'s testimony, possible prejudice caused by the jury's contact with the Bible and prayer during deliberations, even if it there was an intrusion.

Based on this evidence, the court finds that Perkins is not entitled to any relief based on his claim that he was denied a fair trial by the jury's consideration of Biblical references external to evidence and instructions presented at trial.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

H. PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT

Perkins claims that he is intellectually disabled and, therefore, his execution would violate the Eighth Amendment. (See doc. 1 ¶ 299.) After the Alabama Supreme Court affirmed Perkins's conviction on direct appeal and while his petition for certiorari review was pending before the United States Supreme Court, the Court decided Atkins v. Virginia, which held, "Construing and applying the Eighth Amendment in the light of our evolving standards of decency, we . . . conclude that [the death penalty] is excessive [punishment] and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." Atkins v. Virginia, 536 U.S. 304, 321 (2002)(internal quotations omitted). The Court vacated the Alabama Supreme Court's affirmance of Perkins's conviction and remanded his case for further consideration in light of Atkins. Perkins v. Alabama, 536 U.S. 953 (2002). On remand, the Alabama Supreme Court "conclude[d] that Perkins does not suffer from mental retardation under the definitions considered by the United States Supreme Court in reaching its holding in Atkins or as defined by any of the state statutes that prohibit the imposition of the death sentence on a mentally retarded defendant." Ex parte Perkins, 851 So.2d 453, 455-56 (Ala. 2002)(footnotes omitted).

In his habeas petition, Perkins argues that the Alabama Supreme Court's decision on remand was "contrary to and an unreasonable application of Atkins, 28 U.S.C. § 2254(d)(1), and also an unreasonable determination of the facts, 28 U.S.C. § 2254(d)(2)." (Id. ¶ 313.) Specifically, he argues:

(Doc. 1 ¶¶ 314-17 [footnote added; original footnote omitted].)

Perkins asked the Alabama Supreme Court for an opportunity to present evidence that he was intellectually disabled; however, the court denied his request. The court held:

Ex parte Perkins, 851 So. 2d at 455-57, cert. denied 540 U.S. 830 (2003).

The state court's determination that Perkins is not intellectually disabled is a finding of fact entitled to deference under the AEDPA. See Ledford v. Warden, GDCP, 818 F.3d 600, 632 (11th Cir. 2016). "As the Court noted in Atkins, the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period." Hall, 572 U.S. at 710 (citing, inter alia, Atkins, 536 U.S. at 308 n.3). "In the context of a formal assessment, the existence of concurrent deficits in intellectual and adaptive functioning has long been the defining characteristic of intellectual disability." Id. (internal quotations and citation omitted). The Alabama Supreme Court has held:

Smith v. State, 213 So.3d 239, 248 (Ala. 2007); see also Ala. Code § 15-24-2(3)(defining "intellectually disabled person" for purposes of the "Intellectually Disabled Defendant Act" as, "A person with [1] significant subaverage general intellectual functioning [2] resulting in or associated with concurrent impairments in adaptive behavior and [3] manifested during the developmental period, as measured by appropriate standardized testing instruments"). For the reasons set forth below, the court finds that Perkins has failed to show that the state court's determination — that he is not intellectually disabled — was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," see 28 U.S.C. § 2254(d)(2).

1. The IQ Test Score — Intellectual Functioning

Dr. John Goff, a licensed clinical neuropsychologist, testified on Perkins behalf during the penalty phase of his trial. Dr. Goff testified that he administered the WAIS-R test to Perkins and that Perkins got a full scale score of 76, a verbal score of 80, and a performance score of 74. (See doc. 10, Vol 17, Tab 31 at 2868-69; id., Vol. 63 at 363; see also id., Vol. 2 at 323.) During the penalty phase, Dr. Goff testified that Perkins's IQ score placed him in the borderline range of intellectual functioning. (Id., Vol. 17, Tab 31, at 2868-69.) At the Rule 32 hearing, he testified that, based on his evaluation of Perkins in 1994, he did not believe Perkins was intellectually disabled. (Id., Vol. 63 at 363-65.) This is the only evidence of IQ testing or expert testimony regarding Perkins's intellectual functioning in the record before this court.

Perkins contends that the Alabama court erred by failing to adjust his IQ score based on the Flynn effect and the standard error of measurement [SEM]. (Doc. 1 ¶ 316.) The failure to consider the Flynn effect does not make the Alabama court's finding with regard to Perkins intellectual functioning "unreasonable." See Ledford, 818 F.3d at 637; Reeves, 226 So. 3d at 739. Also, the Alabama court's failure to account for the SEM does not support a finding that its determination of Perkins's intellectual functioning was unreasonable given the fact that Dr. Goff, Perkins's trial expert, testified that Perkins is not intellectually disabled and that his intellectual functioning was in the borderline range. A diagnosis of borderline intellectual functioning "is mutually exclusive of [a diagnosis of] mental retardation." Jordan v. Comm'r of Soc. Sec. Admin., 470 Fed. Appx. 766, 768-69 (11th Cir. 2012)(citing Am. Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 47-48, 741 (4th ed. text rev. 2000)).

Hall, 572 U.S. at 712-13 (internal citations omitted; emphasis added). The SEM for the IQ test given to Perkins, the WAIS-R, is ±5. Applied to Perkins's full-scale score of 76, the range of IQ scores within which was his "true IQ" fell was 71 to 81 (76-5=71; 76+5=81). Dr. Goff reported that Perkins's IQ scores were valid and that they represented "fairly consistent performance within the borderline range of psychometric intelligence." (Doc 10, Vol. 2 at 323 [emphasis added].) As Dr. Goff testified that Perkins's IQ was in the borderline range, the application of the SEM is not necessary to determine the "range" of Perkins's intellectual functioning.

Dr. Goff's report, which was before the Alabama courts, stated that Perkins's results on the WAIS-R indicated that his IQ was "within the borderline range," and that his "full scale score [76] is probably a valid estimate at that level." (Id. at 323, 326.) He also stated, "This patient is currently functioning within the borderline range of psychometric intelligence. This probably represents something of a decline from previous levels of function. The patterns of performance seen in this patient are frequently encountered among patients with long-term histories of alcohol abuse." (Id. at 326 [emphasis added]; see also id. at 327.) At the Rule 32 hearing, Dr. Goff again testified that Perkins was not intellectually disabled. (See doc. 10, Vol. 63 at 363-65.)

The court finds that the Alabama Supreme Court's failure to consider Perkins's IQ to be within the range of intellectually disabled, based on application of the SEM, or to reduce his score to account for the Flynn effect, was not unreasonable and does not provide a basis for relief.

2. Adaptive Functioning

The Alabama court found no evidence in the record that Perkins had "`significant' or `substantial' deficits in adaptive behavior before or after age 18," noting "Perkins was able to have interpersonal relationships," including being married for ten years," and that he had worked "as an electrician for a short period."37 Ex parte Perkins, 851 So. 2d at 456. Perkins contends, "the fact that an individual can get married or take on certain tasks does not mean the individual is not intellectually disabled." (Doc. 1 ¶ 317.) The court does not disagree. However, working as an electrician requires greater intellectual functioning than merely "tak[ing] on certain tasks" or performing simple or menial tasks. The Alabama court could reasonably determine that the ability to learn the craft and to work as an electrician rebuts Perkins's assertion that he has significant or substantial deficits in adaptive behavior.

"The adaptive impairment prong of an intellectual disability diagnosis requires an evaluation of the individual's ability to function across a variety of dimensions." Brumfield v. Cain, 135 S.Ct. 2269, 2279 (2015). The record in this case contains evidence that, "[w]hile on parole for approximately three months in 1990, [Perkins] was employed as an electrician at Miller Electric Company. (Doc. 10, Vol. 2 at 315.) The job of electrician is a skilled craft, requiring significant training and the performance of complex tasks. See Clapper v. Comm'r of Soc. Sec., No. 4:17-CV-00401-JHE, 2018 WL 4568615, *7, 9, and n.11 (N.D. Ala. Sept. 24, 2018)(noting work as electrician and electrician's helper is skilled or semi-skilled work and that claimant's "ability to do skilled electrician or electrician's helper work prior to age 22 supported that he had no discernable significant subaverage intellectual functioning or any deficit in adaptive functioning prior to that age"). This court finds that the state court could reasonably determine that work as an electrician was inconsistent with any claim that Perkins is intellectually disabled. Perkins has not argued otherwise to this court.

Also, as set forth above, the only expert opinion as to Perkins's level of intellectual ability is Dr. Goff's opinion that Perkins is not intellectually disabled. Therefore, the court finds that Perkins is not entitled to relief on this ground.

3. Failure to Grant Evidentiary Hearing

Perkins contends that he was denied the opportunity to submit evidence to establish his intellectual disability and, "because [his Atkins] claim hinges on factual matters and Perkins was denied an opportunity to develop the factual record in state court, an evidentiary hearing is appropriate." (Doc. 1 ¶ 318 [citing 28 U.S.C. § 2254(e)].). Section 2254(e) states:

28 U.S.C. § 2254(e).

Recognizing that "evidence presented pre-Atkins may not in every case be conducive to an Atkins inquiry and may not enable a court to make reasonable factual determinations relating to mental retardation for the purposes of the Eighth Amendment," the court finds, in this case, the record provided a "concrete, verifiable IQ score" and unequivocal expert testimony that Perkins's IQ was within the borderline range. See Burgess v. Comm'r, Alabama Dep't of Corr., 723 F.3d 1308, 13161, 1317 (11th Cir. 2013). The Alabama Supreme Court was not required to allow Perkins an opportunity to present additional evidence that he was intellectually disabled because the record evidence that he was not intellectually disabled was adequate to support its finding. Although Perkins asked the Alabama Supreme Court to allow him to submit additional evidence, he did not make any offer of proof to that court of such additional evidence and he has not offered clear and convincing evidence of his intellectual disability to this court.

Therefore, the court finds that Perkins is not entitled to an evidentiary hearing on his Atkins claim.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous or insufficient facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Supreme Court unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

I. THE BATSON CLAIM

Perkins alleges, "The State violated the Equal Protection Clause of the Fourteenth Amendment by excluding black prospective jurors on account of race," and "The state court's holding that Perkins failed to establish a prima facie case of race discrimination is contrary to and involves an unreasonable application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and is based on an unreasonable determination of the facts in light of the evidence in the record, see 28 U.S.C. 2254(d)(2)." (Doc. 1 ¶ 325 [citing Batson v. Kentucky, 476 U.S. 79 (1986)].) He alleges that (1) the State "used its peremptory strikes disproportionately against black veniremembers, striking 10 of the 17 black prospective jurors and only 8 of 30 white prospective jurors," (id. ¶ 326); (2) "[t]he Tuscaloosa County District Attorney's Office had a history of racial discrimination in its use of peremptory strikes," (id. ¶¶ 327-28 [citing Jackson v. Herring, 42 F.3d 1350, 1354-57 (11th Cir. 1995); Hemphill v. State, 610 So.2d 413, 414-17 (Ala. Crim. App. 1992)]), (3) "[t]he excluded black prospective jurors shared no characteristic in common except for race," (id. ¶¶ 330-32).

At trial Perkins challenged the State's use of 10 of its 18 peremptory challenges to strike African-American veniremembers:

(Doc. 10, Vol. 11 at 1667-69.)

The Alabama Court of Criminal Appeals affirmed the denial of Perkins's Batson motion on direct appeal. It held:

Perkins, 808 So. 2d at 1075-77.

In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from striking potential jurors "solely on account of their race." Batson, 476 U.S. at 89. In Batson, the Supreme Court has "enumerated" three steps, "which together guide trial courts' constitutional review of peremptory strikes:

Johnson v. California, 545 U.S. 162, 168 (2005)(citing, inter alia, Batson, 476 U.S. at 93-94)(internal quotations and citations omitted). In this case, the trial court found that Perkins had not demonstrated a prima facie case; therefore, it did not progress beyond the first step of Batson.

A finding of a prima facie showing pursuant to Batson is a question of fact. See King v. Moore, 196 F.3d 1327, 1334 (11th Cir. 1999)("Whether a defendant has thus made a prima facie showing is (perhaps counterintuitively) treated as a question of fact to be decided by the trial judge."). "In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances," including whether the prosecutor engaged in "a `pattern' of strikes against black jurors," and whether "[s]imilarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges . . . support or refute an inference of discriminatory purpose." Batson, 476 U.S. at 96-97. Also, relevant circumstances include whether the subject matter of the case is racially sensitive and whether the defendant is the same race as the struck jurors.38 United States v. Hill, 643 F.3d 807, 839-40 (11th Cir. 2011). In other words, "In making out a prima facie case, the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal." United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990)(emphasis added). At trial, Perkins did not "point to" any fact supporting a prima facie Batson showing except for the total number of strikes the State had used to remove African-Americans from the venire.

After challenges for cause and hardship excuses, the venire was about 36% minority. The State had, and exercised, 18 peremptory strikes; it used 10 (56%) of them against black venire members. The final jury of 14 (12 plus 2 alternates) included eight (57%) minority jurors (7 jurors and 1 alternate). The Eleventh Circuit has held that such "statistics, without more, do not establish a prima facie case." United States v. Hill, 643 F.3d 807, 838-39 (11th Cir. 2011)(citing United States v. Campa, 529 F.3d 980, 989 (11th Cir. 2008); Central Alabama Fair Housing Center v. Lowder Realty Co., 236 F.3d 629, 638 (2000); United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995); Allison, 908 F.2d at 1537).

In this case, a majority of the jury was African-American and the State had additional peremptory strikes it could have used to remove them. See Allison, 908 F.2d at 1537-38 ("Allison has pointed to nothing that strongly suggests racial motivation was the basis for the strikes used. Fifteen percent of the venire for this case were black. The percentage of blacks on the jury (including alternates) was twenty-one percent. The prosecutor struck three black jurors; he also struck two white jurors. The prosecutor preserved three black jurors, even though he had enough peremptory challenges to strike all the black jurors. Under such circumstances, we reject Allison's Batson claim.") "Although the presence of African-American jurors does not dispose of an allegation of race-based peremptory challenges, it is a significant factor tending to prove the paucity of the claim." Puentes, 50 F.3d at 1578 (citing Allison, 908 F.2d at 1537); see United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986)("It is thus obvious that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury," and "the unchallenged presence of two blacks on the jury undercuts any inference of impermissible discrimination that might be argued to arise from the fact that the prosecutor used three of the four peremptory challenges he exercised to strike blacks from the panel of potential jurors and alternates.").

"Of course, the prima facie case determination is not to be based on numbers alone but is to be made in light of the totality of the circumstances." Hill, 643 F.3d at 839 (citing Johnson, 545 U.S. at 168). However, Perkins did not offer the trial court any circumstances other than the number of challenges against African-American venire members in support of his Batson challenge. (Doc. 10, Vol. 11 at 1667.) "Because [circumstances other than numbers] were not properly before the court, it was not an unreasonable application of Batson for the court to decline to consider them." Jenkins v. Allen, No. 4:08-CV-0869-VEH, 2016 WL 4540920 at *81 and n.42 (N.D. Ala. Aug. 31, 2016).

The Court of Criminal Appeals held that "Perkins [had] offer[ed] this court nothing, other than the number of blacks struck, to support his contention that the State improperly struck jurors based solely on their race," and "[w]ithout more, [it did] not find that the number of strikes this prosecutor used to remove blacks from the venire [was] sufficient to establish a prima facie case of racial discrimination." Perkins, 808 So. 2d at 1076. This decision, which is based on a reasonable determination of the facts, is neither contrary to nor an unreasonable application of Batson and its progeny. Therefore, this claim will be denied.

CONCLUSION

The state court's factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court's rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

VII. CONCLUSION

For the foregoing reasons, the court finds that Perkins's claims are due to be denied and his Petition is due to be dismissed. An Order dismissing Perkins's Petition for Writ of Habeas Corpus, (doc. 1), will be entered contemporaneously with this Memorandum Opinion.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the habeas petitioner. This Court may issue a certificate of appealability "only if the applicant has a made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To make such a showing, Perkins must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that "the issues presented were adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(citation and internal quotation marks omitted). This court finds that Perkins's claims do not satisfy either standard.

Therefore, the district court will deny Perkins a certificate of appealability in the Order entered contemporaneously herewith.