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Perkins v. Hoffner

United States District Court, E.D. Michigan, Southern Division

May 23, 2019

FREDERICK LEON PERKINS, #397129, Petitioner,
v.
BONITA J. HOFFNER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          BERNARD A. FRIEDMAN SENIOR U.S. DISTRICT JUDGE

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in Oakland County Circuit Court of unlawful imprisonment, Mich. Comp. Laws § 750.349b; assault by strangulation, Mich. Comp. Laws § 750.84(1)(b); and six counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(e). Petitioner was sentenced as a fourth-time habitual felony offender to 15 to 30 years of imprisonment for the unlawful imprisonment conviction, 12 to 30 years of imprisonment for the assault conviction, and 50 to 100 years of imprisonment for each first-degree criminal sexual conduct conviction. The instant petition raises two claims: (1) the prosecutor improperly injected religion as an issue at trial, and (2) petitioner was denied the effective assistance of trial counsel. The Court shall deny the petition because the claims are without merit. The Court shall also deny a certificate of appealability and permission to proceed on appeal in forma pauperis.

         I. Background

         On the morning of September 12, 2013, a naked, beaten, and hysterical Alicia Willis appeared at the front door of a home in Farmington, Michigan. 9-1-1 was called. Willis told responding officers that the previous night she had been brutally beaten and raped numerous times by petitioner at his neighboring house. Petitioner was subsequently charged with the offenses listed above.

         At petitioner's trial, Willis testified that at the time of the incident she was living at a motel in Detroit. Petitioner contacted Willis through social media ostensibly to show her a rental property. Willis had dated petitioner for about six months in 2012, but she had not seen him since the end of the summer of 2012.

         On the evening of September 11, 2013, petitioner picked up Willis at the motel. After they drove around for a short time, he took her to his house, where they ate, drank, and used cocaine. Petitioner demanded sex from Willis, and when she refused, he produced a handgun and placed it on a table. Willis then complied with petitioner's demands. During the sexual encounter petitioner choked Willis until she passed out. When she awoke, Willis found herself with her hands and feet tied together behind her back. Willis described being sexually assaulted by petitioner repeatedly throughout the night. She said petitioner inserted a gun into her vagina and hit her head and face with the gun and with his fist. Petitioner performed oral sex on her using his teeth, which she said was painful. Petitioner strangled Willis again until she lost consciousness. She awoke when petitioner re-inserted the gun into her vagina. Petitioner then attempted to insert the gun into her anus, failed, and hit her on the head with the gun. Petitioner inserted a black object with ridges into her anus. At one point petitioner forced the gun into Willis' mouth and she attempted to pull the trigger, believing that he was eventually going to kill her anyway. At another point petitioner urinated on the front of Willis' body while she sat on the toilet. Petitioner told Willis that he would not be able to take her home because of her injuries and that he would have to kill her. He told her that he would chop her body into pieces and spread them around Detroit. In the morning, petitioner tried to take her into his garage to show her where he had hidden the body of her friend that he had killed, but she ran back inside the house. There, petitioner demanded oral sex. While receiving oral sex from Willis, petitioner put his head back and Willis fled from the house.

         Willis testified that she could not remember with certainty the order in which each of these instances of sexual assault had occurred. Willis' description of the events at trial differed in some respects from what she told the police and medical personnel, and from her testimony at the preliminary examination, but prosecution witnesses testified that such inconsistencies are not uncommon given the circumstances.

         Tiffany Pinkard, who lived down the street from petitioner, testified that at around 7:00 a.m. on September 12, 2013, Willis appeared at her front door, naked and crying, “Help me, help me, he's trying to kill me.” Jury Trial Tr. I at 23. Pinkard let Willis come inside her house and called 9-1-1. Willis told the 9-1-1 operator that she had been kidnapped and raped, that she had broken free, and that she was afraid petitioner would find her and kill her. Pinkard saw injuries on Willis' face and head. The police arrived, and Willis and Pinkard directed them to petitioner's house and gave them petitioner's name and contact information. Responding paramedics treated Willis for injuries and transported her to the hospital.

         The emergency room physician testified that Willis had a split lip, bruising on her face and neck, and tenderness, swelling, and bruising on the top and sides of her head. Willis' lip wound required seven stitches. The neck bruises were consistent with being strangled. An examination of Willis' external vaginal area revealed some blood and swelling in the area between the opening of the vagina and the opening of the rectum. Willis was given intravenous morphine for her pain.

         A CAT scan showed swelling on Willis' facial bones. An ultrasound revealed bleeding between her uterus and her placenta - unbeknownst to her, she was eleven weeks pregnant. This bleeding was consistent with an object being used to forcibly penetrate her vagina. A subsequent examination at a sexual assault treatment facility revealed a split lip, swelling in the cheek and head, and broken blood vessels in the corners of the eyes, which was consistent with strangulation.

         At around 8:00 a.m. on September 12, approximately an hour after Willis had appeared at Pinkard's front door, a number of police officers went to petitioner's address. Petitioner did not answer his phone and did not respond to a command to exit his house made over a patrol car's PA system. A SWAT team arrived at around 9:00 a.m. Petitioner finally emerged and was arrested without incident after the SWAT team pulled an armored car up to his door and through a loud speaker demanded that he come out. Inside the house officers smelled bleach emanating from the kitchen sink, which was filled with water and rags. Women's clothing was found wrapped in a towel in the bathroom. A pistol was found concealed between two box springs in the bedroom. A black rod was found on the bedroom floor. Willis' phone and other personal belongings were never found.

         DNA analysis showed that Willis was the major donor of genetic material on the black rod and the barrel of the handgun retrieved from petitioner's house, as well as on a blood stain found on petitioner's living room floor. Y-STR tests showed petitioner as a possible donor of a sample taken from Willis' vulvar swab.

         Petitioner's ex-girlfriend, Courtney Harris, testified about a sexual assault that occurred in June 2012. Harris testified that while she was in a car with petitioner he choked her twice and threatened her with a gun. Harris told police officers at the scene that petitioner had helped her after she had been assaulted by someone else. But at petitioner's trial, she testified that petitioner drove her to his house where he raped her vaginally and anally, and inserted a bottle into her vagina and anus. Harris testified that she never reported the incident to the police.

         Following his conviction and sentence, petitioner appealed. Petitioner's appellate counsel filed a brief on appeal in the Michigan Court of Appeals raising one claim, and petitioner filed a supplemental pro se brief raising three additional claims:

I. The trial court erred in admitting the testimony of Courtney Harris regarding alleged past acts for which defendant was never formally charged, in violation of Rule 404(B), and thereby denied defendant his right to a fair trial.
II. Trial counsel was ineffective for the following:
a. Failing to file a timely motion for investigator.
b. Failing to subpoena defense witnesses.
c. Failing to impeach complainant during ...

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