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United States v. Perkins

July 6, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Petitioner Alonzo Perkins ("petitioner" or "Perkins") has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons explained below, that petition is denied.

I. Background

On January 30, 2003, Perkins was charged in an indictment with possession of a firearm by a felon and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(g)(1) and 922(k), respectively. On December 18, 2003, following a jury trial, Perkins was convicted on both counts. On June 10, 2005, this court sentenced Perkins to fifteen and five years' imprisonment, to be served concurrently. Perkins appealed his sentence, challenging this court's determination that his prior narcotics convictions were "serious drug offenses" that subjected him to an enhanced sentence under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). The Seventh Circuit affirmed petitioner's conviction and sentence. United States v. Perkins, 449 F.3d 794 (7th Cir. 2006).

At trial, the government presented testimony of the four police officers, Officers Bauman, Greenwood, Hoffman and Nikken, who were involved in the incident and arrest of Perkins. Officers Greenwood and Bauman testified that they were driving the wrong way down Mayfield Street in the 15th District when they saw Perkins standing on the corner of Walton and Mayfield holding a chrome gun. They then saw him take off down Walton Street and Officer Bauman radioed to Officers Nikken and Hoffman, who were in a separate car behind them, that they had a guy with a gun and Officers Nikken and Hoffman should take the alley. Officers Bauman and Greenwood then turned down Walton Street. Officer Greenwood got out of the car and chased Perkins on foot while Officer Bauman continued in the car, eventually pulling in front of petitioner and cutting him off. At that point, petitioner turned into a gangway. Officer Greenwood continued behind him and Officer Bauman got out of the car and followed. When petitioner reached the backyard after going through the gangway, Officers Bauman and Greenwood saw him take the gun and toss it over a fence.

Officers Nikken and Hoffman testified that they were driving the wrong way down Mayfield, following Officers Bauman and Greenwood, when they heard Officer Bauman radio something about an individual with a gun and that they should hit the alley. They went down the alley moving from gangway to gangway to see if anyone was going to emerge into the alley. They saw petitioner in a backyard and got out and placed him under arrest.

Officers Bauman and Greenwood further testified as follows. Officer Bauman looked over the fence and saw the gun lying in the yard. He walked around into the backyard and retrieved it. Officer Greenwood made the gun safe by removing the ammunition and he found that there were nine rounds, one of which was in the chamber.

Officers Nikken and Hoffman further testified that when Perkins was back at the police station sitting in the processing room with Officers Nikken and Hoffman, Perkins said that the streets were rough and he needed the gun for protection.

Three other witnesses testified for the government. Fingerprint specialist Richard Canty testified that he was unable to find any usable prints on the gun or ammunition. He further testified that this did not mean that it had not been touched nor was it unusual not to find prints on a gun or ammunition. ATF Special Agent Michael Casey also testified for the government. He testified that the gun, a Lorcin, was manufactured in the state of California and therefore moved in interstate commerce. He also testified about the obliterated serial number on the gun and explained that when a serial number has been obliterated that gun, if recovered in a crime, cannot be traced to its purchaser. He also testified that the obliterated serial number was in a place on the gun where anyone familiar with guns would be able to see if it was obliterated. Forensic scientist Aaron Horn testified that he was able to use scientific techniques to restore the obliterated serial number.

Perkins presented two witnesses. His girlfriend, Shirley Howard, testified that she and Perkins had a very heated argument that night and Perkins, after being encouraged to do so by his relatives, left their house through the back door. After approximately five or ten minutes went by, Howard heard Perkins' laughing on the front porch. She exited the premises through the back door and as she approached the front of the house, she saw police officers putting Perkins in the back seat of a police car. Perkins' cousin, Darquello Sanders, testified that he saw Perkins exit his house and begin walking down the street, looking for Perkins' son. Sanders testified that after someone claimed that there had just been a "hit," he saw seven or eight individuals, including Perkins, running through the gangway when the police arrested Perkins.

The parties stipulated to the fact that prior to October 7, 2002, Perkins had been convicted of a felony.

In his Section 2255 motion, Perkins alleges he was denied the effective assistance of trial counsel because: (1) counsel failed to file a motion to suppress statements made by Perkins; (2) counsel failed to file timely post-trial motions; and (3) counsel failed to present a justification defense and request a jury instruction on justification. He claims he was denied the effective assistance of appellate counsel when counsel failed to raise the following issues on appeal: (1) the district court's refusal to give a mere presence instruction to the jury; (2) the district court's removal of the only African American member of the jury; (3) the government's use of a peremptory challenge to remove a particular prospective juror allegedly in violation of Batson; and (4) the district court's refusal to submit to the jury the question of whether Perkins' prior drug convictions qualified under the ACCA. In an amendment to his Section 2255 motion, Perkins also claims that his sentence must be vacated because his prior convictions did not qualify as predicate offenses under the ACCA, citing recent amendments to the federal sentencing guidelines.

II. Analysis

Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention if their conviction or sentence has been founded on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1995); 28 U.S.C. § 2255. If the court determines that any of these errors infected the judgment or sentence, the petitioner's conviction will ...

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