Perkins v. Russo

United States Court of Appeals
For the First Circuit

No. 08-1150

ROBERT PERKINS,

Petitioner, Appellant,

v.

LOIS RUSSO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Stahl, Circuit Judges.

Robert Perkins on brief pro se.
Argie K. Shapiro, Assistant Attorney General, Criminal Bureau,
James J. Arguin, Assistant Attorney General, Criminal Bureau, and
Martha Coakley, Attorney General, on brief for respondent.

November 18, 2009
 BOUDIN, Circuit Judge. Robert Perkins is currently

serving a twenty-five-to-forty-year sentence in state prison for

his conviction on charges related to the armed robbery, kidnapping

and wounding of James Martin in 1993. Based on a certificate of

appealability ("COA"), Perkins now appeals to this court from the

district court's denial of his petition for a writ of habeas

corpus.

Evidence offered by the state at Perkins' original trial

indicated that Perkins and his brother Michael restrained and

robbed Martin after Martin came to the Perkins' house to visit

Perkins' sister Vanessa (Martin had earlier shown Vanessa a cash

settlement of roughly $5,000 he had received the previous summer as

the result of a car accident). Perkins and his brother then drove

Martin to his parents' home where Martin also lived; restrained his

parents and stole jewelry, cash, and other valuables from the

residence; and finally drove Martin to a desolate stretch of road,

where they shot him several times before fleeing.

Although wounded, Martin made his way to the steps of a

nearby house, and the police were called. Once they arrived, the

police asked Martin what had happened and who was involved. Martin

initially hesitated before identifying his assailants, asking the

police to protect his family; when the police agreed to do this,

Martin identified Robert and Michael Perkins as the ones who had

shot him. Martin was then transported by ambulance to a nearby

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hospital, during which time he was accompanied by one of the

responding officers. En route and at the hospital, Martin repeated

his identification of Robert and Michael Perkins, and he later told

police that a third person, Hassan Parham, was also involved in the

crime.

The case went to trial in state court in February 1995.

The prosecution relied principally on Martin's testimony including

his identification of the Perkins brothers as the men who had

kidnaped, robbed and shot him. No other witnesses testified

against Perkins, and no identifiable fingerprints or other physical

evidence was offered by the state. Although Martin's parents were

robbed by the same individuals who kidnaped Martin, the assailants

had put on masks by the time they entered the house and were not

identifiable by Martin's parents.

At trial, the defendants challenged Martin's credibility.

Martin admitted that he had sold drugs to Robert and Michael

Perkins on multiple occasions, and in addition Martin had been

arrested for trafficking cocaine and illegally possessing a firearm

five days before the trial and also faced charges in connection

with a March 1994 arrest for assault and battery with a dangerous

weapon. The defendants suggested that he was testifying falsely so

as to curry favorable treatment with respect to these charges;

Martin denied this and, when questioned by the prosecutor,

countered the suggestion as follows:

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 Q: At any time have you talked to any member
of the district attorney's office in regards
to any of your pending cases?

A: No, I haven't.

Q: In regards to the [1994] Cambridge [assault
and battery] offense . . ., did you ever speak
to anyone in the district attorney's office in
regards to that particular case?

A: No.

Q: And, in regards to the case that you just
recently have been charged with on January
20th of '95, have you ever spoken to anyone in
the district attorney's office about that
pending case or any --

A: No, I have not.

Q: Are you here to testify because you're
required to or as a result of what happened to
you on that day?

A: Yes, I am.

Q: And is there any other reason why you are
here?

A: Yeah.

Q: Why?

A: Because he [Perkins] shot me and tried to
kill me. That's why.

During redirect, Martin was again asked by the prosecutor whether

"anyone [had] offered [him] any promises, rewards, or inducements"

to testify, and he responded, "No."

At the trial's conclusion, the jury found Perkins and his

brother Michael guilty on all counts but acquitted Parham, the

third and later-identified co-defendant. Perkins' conviction was

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affirmed on direct appeal in September 1997. Commonwealth v.

Perkins, 684 N.E.2d 270 (Mass. App. Ct. 1997). He filed several

post-conviction motions for a new trial in state court thereafter,

each of which was denied.1 Failing to obtain relief there, Perkins

eventually brought a federal habeas proceeding in federal district

court.

The federal case had its origin in allegations originally

made in Perkins' second state-court motion for a new trial. There

Perkins asserted that Martin had been induced to testify by the

Boston police, that the prosecutor failed to disclose this

inducement as required by Brady v. Maryland, 373 U.S. 83 (1963),

and that the prosecutor knowingly allowed Martin to perjure himself

by denying inducements. In a supporting affidavit, an acquaintance

of Perkins claimed that Martin had admitted to him that he

testified against the Perkins brothers because "an officer . . . of

the Boston Police had told him that if he testified . . . [the

officer] could help him out with his drug trafficking case." In

his own affidavit, Perkins said that the first affiant had reported

this to Perkins.

1
Commonwealth v. Perkins, 878 N.E.2d 582 (Mass. App. Ct.
2008); Commonwealth v. Perkins, 821 N.E.2d 517 (Mass. App. Ct.
2005), review denied 825 N.E.2d 543 (Mass. 2005); Commonwealth v.
Perkins, 761 N.E.2d 549 (Mass. App. Ct. 2002), review denied 766
N.E.2d 70 (Mass. 2002). Perkins also filed a collateral attack on
his sentence in state court in 2007. Commonwealth v. Perkins, 877
N.E.2d 280 (Mass. App. Ct. 2007).

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 The state trial judge denied the motion, finding neither

affidavit credible or material. Perkins then moved for

reconsideration of the denial of his motion, this time supplying an

affidavit from Martin himself averring that at the time of Martin's

arrest shortly before the Perkins trial, a Boston police officer

had "stated to [Martin] that [his] testimony in the Perkins' armed

robbery case would make things a lot easier for [him] in [his] drug

case," and that he "eventually ended up testifying against the

Perkins brothers because [he] felt [his] cooperation in that case

would go a long way in helping [him] in [his] drug trafficking

case."

However, Martin also swore that he did not lie in his

testimony against the Perkins and reaffirmed that he "was robbed

and shot by Robert Perkins and Michael Perkins." The trial judge

denied the motion for reconsideration and the state appeals court

affirmed, noting that Martin had identified Perkins as one of his

assailants long before his arrest on drug charges; that Martin

never wavered from this accusation; that Martin's affidavit,

insomuch as it reiterated that Perkins had robbed and assaulted

him, confirmed his trial testimony; and that the trial judge, who

decided the motion for a new trial, was in the best position to

evaluate whether an evidentiary hearing on the issue was necessary.

See Perkins, 821 N.E.2d at 517.

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 Unsuccessful at the state level, Perkins amended an

earlier-filed habeas petition to include the disclosure and

subornation of perjury claims made in his second motion for a new

trial. This petition was denied by the district court in August

2007. Perkins v. Russo, No. 02-10460, 2007 WL 2507741, at *7 (D.

Mass. Aug. 31, 2007). The district court applied the same

prejudice standard to Perkins' claim that the prosecutor failed to

disclose Martin's inducement to testify and his claim that the

prosecutor failed to correct perjured testimony. Of the latter

claim, the court stated that "the First Circuit treats such actions

like a Brady violation and as subject to an identical prejudice

inquiry" and denied the petition because "it was reasonable [for

the state court] to conclude that the verdict would have been

identical" had Martin disclosed his alleged conversations with the

police. Id. at *7.

Perkins sought a COA on multiple grounds, including an

assertion that both the state court and the federal district court

had applied an incorrect prejudice standard to his subornation

claim. According to Perkins, a criminal defendant alleging

subornation of perjury need show only "any reasonable likelihood

that the false testimony could have affected the judgment of the

jury," United States v. Agurs, 427 U.S. 97, 103 (1976), whereas a

successful Brady claim requires a showing of "a reasonable

probability that, had the evidence been disclosed to the defense,

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the result of the proceeding would have been different." United

States v. Bagley, 473 U.S. 667, 682 (1985) (emphasis added). The

district court granted the COA, narrowing the issue to whether

Perkins established prejudice under the more defendant-friendly

standard of materiality for subornation of perjury claims.

Perkins v. Russo, No. 02-10460, 2008 WL 4793806, *3 (D. Mass. Oct.

31, 2008).

The Anti-Terrorism and Effective Death Penalty Act

("AEDPA") ordinarily requires those seeking review of a state court

decision to show that the decision was either "contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d) (2006). The "contrary to" language

requires that the state court apply a rule that in terms or effect

contradicts Supreme Court precedent, Williams v. Taylor, 529 U.S.

362, 405 (2000); the "unreasonable application of" language

requires that the state court identify the correct legal rule "but

unreasonably appl[y] that principle to the facts of the prisoner's

case." Id. at 413.

A threshold question, however, is whether the relevant

issue was "adjudicated on the merits" by the state court. 28

U.S.C. § 2254(d); see also Zuluaga v. Spencer, 2009 WL 3335991, at

*1 (1st Cir. Oct. 19, 2009). If so, the AEDPA deferential

standards apply; if not, the petitioner is entitled to de novo

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review of the issue by the federal court. Zuluaga, 2009 WL

3335991, at *1. We have held that a federal claim can be

adjudicated on the merits even when the state court cites only

state law, see McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.

2002), but this case presents a more complicated situation: the

state court treated Perkins' disclosure and subornation claims

interchangeably and did not cite any cases--state or federal--

discussing the standards governing those claims. See Perkins, 821

N.E.2d at 517; cf. Perkins, 2007 WL 2507741 at *6. But as it turns

out, even de novo review does not help Perkins.

Perkins is correct that a prosecutor's knowing inducement

of perjury is treated more harshly than a failure, which could be

inadvertent, to disclose exculpatory evidence. In the latter case-

-which is the more typical Brady claim--failure to disclose is

deemed fatal only if there is a "reasonable probability" that

disclosure would have altered the outcome of the trial. Bagley,

473 U.S. at 682; Mastracchio v. Vose, 274 F.3d 590, 601 (1st Cir.

2001). But when a prosecutor knowingly uses perjured testimony, "a

conviction . . . is fundamentally unfair, and must be set aside if

there is any reasonable likelihood that the false testimony could

have affected the judgment of the jury." Agurs, 427 U.S. at 103;

see also Mastrachio, 274 F.3d at 601; Gilday v. Callahan, 59 F.3d

257, 267 (1st Cir. 1995). If the state court misunderstood this,

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AEDPA would not shield the state court's decision on prejudice from

plenary review.

Yet even with plenary review, Perkins' claim fails.

Martin had identified Perkins multiple times before he was ever

even arguably pressed to testify by one of the police officers. He

never equivocated with respect to Perkins' involvement in his

shooting; rather, he reaffirmed Perkins' guilt in the same

affidavit that Perkins relies upon to show that Martin had been

induced to testify. Even assuming that the police were treated as

offering an inducement, the critical identification occurred before

any such inducement was offered. Any claim that the identification

rested on the inducement therefore falls flat on its face.

Further, Martin's stake in testifying had to be obvious

to the jury regardless of whether the policeman's alleged comment

were known to have occurred. Martin was in jeopardy due to his

drug arrest as the jury learned from his testimony; and anyone with

sense would know that he would be better off cooperating in an

attempted murder case. Absent a specific promise of specific

benefits, the jury already knew that he had a stake in supporting

the state's position. Martin knew this, as his affidavit states;

but the jury had to know it as well. The policeman's alleged

statement only spelled out the obvious.

In light of these considerations, the prosecutor's

failure to correct Martin's testimony--even assuming the prosecutor

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knew of the supposed police statement and improperly failed to say

so--would not have had "any reasonable likelihood . . . [of]

affect[ing] the judgment of the jury." Agurs, 427 U.S. at 103.

This is our own view so that even if we adopt Perkins' own standard

of prejudice and assess the matter de novo, the claim would still

fail on the present facts. Any added deference that might be

required by AEDPA would merely be icing on the cake.

In fairness to the prosecutor, we note that Perkins

points us to nothing that indicates that the prosecutor knew that

the police officer had made the alleged comment to Martin.

Subornation requires "the knowing use of perjured testimony."

Agurs, 427 U.S. at 103 (emphasis added). The police office who

supposedly made the comment was apparently connected to Martin's

drug arrest; whether he had any direct connection to the

prosecution trial team aiming to prosecute Perkins is unclear. But

given the lack of prejudice, what the prosecutor might have known

does not matter.

Affirmed.

-Dissenting Opinion Follows-

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 STAHL, Circuit Judge, dissenting. With respect, I

disagree with the majority's view of the case. Martin's

identification of Perkins as one of the assailants was the central

evidence of his guilt. There was no physical evidence tying

Perkins to the crime and no other witness testified against him at

trial. In addition, because Martin knew Perkins well -- he was his

drug dealer and had dated Perkins' sister -- there was no issue of

the reliability of his eyewitness identification. Rather, the

paramount issue in the case was Martin's honesty. Did Martin

identify Perkins as the assailant because Perkins in fact committed

the crime or because Martin held a grudge against Perkins related

to Martin's romantic relationship with Perkins' sister and wanted

to frame him for the crime? Against this backdrop, it is now

brought to the court's attention that, according to Martin's own

affidavit, Martin lied at trial when asked whether he received any

inducement to testify against Perkins. Because Perkins did not

have access to important impeachment information to which he was

entitled (that a police officer told Martin that "things [would go]

a lot easier for [him]" if he testified against Perkins), Perkins

was left to battle the key evidence of his guilt -- Martin's

identification -- with one hand tied behind his back.

As a threshold matter, I believe we must review Perkins'

claim de novo because, as the majority concedes, "the state court

treated Perkins' disclosure and subornation claims interchangeably

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and did not cite any cases--state or federal--discussing the

standards governing those claims." See Pina v. Maloney, 565 F.3d

48, 54 (1st Cir. 2009) ("In the absence of a state merits

determination, the more deferential habeas review under the

Antiterrorism and Effective Death Penalty Act is inapplicable and

our review is de novo."). In addition, on the prejudice question,

the Massachusetts Appeals Court made no reference to or

consideration of the Supreme Court's decision in United States v.

Agurs, 427 U.S. 97 (1976).

Employing de novo review, I would reach a different

answer than the majority on the prejudice question. The test for

prejudice when there has been knowing suborning of perjury by the

prosecution is whether, "there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury."

Agurs, 427 U.S. at 103. Given the particulars of this case, I

think this relatively "defendant-friendly standard" is met.

Mastracchio v. Vose, 274 F.3d 590, 601 (1st Cir. 2001). The case

against Perkins relied almost entirely on the jury's perception of

Martin's honesty. Yet, Martin's honesty was already called into

question by at least two factors: his status as a drug dealer with

pending charges against him and the presentation of evidence

suggesting that Martin had a motive for disliking Perkins and

wanting to frame him for the crime. Given that the jury had to

convict Perkins beyond a reasonable doubt, I believe the additional

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increment of doubt provided by the information that a police

officer had induced Martin to testify against Perkins may well have

"affected the judgment of the jury." Agurs, 427 U.S. at 103.

The majority dismisses the importance of the inducement

evidence by stating that it "had to be obvious" to the jury that

Martin had a personal stake in testifying and "anyone with sense"

would know that Martin would be better off cooperating. The

majority concludes that, "The policeman's alleged statement only

spelled out the obvious." However, guilt and innocence, and in

this case the question of prejudice, should be determined based on

the evidence presented at trial. We should not rely on a vague

notion that the jury surely must have presumed as much as a

substitute for the admission of persuasive impeachment material

that could well have tipped the scale in Perkins' favor. Effective

and constitutionally sufficient defenses are not built on hunches

and presumptions of general knowledge on the part of the jury; they

are built on admissible evidence. To conclude otherwise, I

believe, ignores the central crucible of our adversarial system.

In addition, I am not persuaded by the majority's

argument that the impeachment evidence was irrelevant simply

because Martin made his identification of Perkins shortly after the

incident and before his own arrest in the subsequent drug case.

This ignores Perkins' argument, made at trial, that Martin should

not have been believed because, at the time of the identification,

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he had a contemporaneous reason to dislike and therefore frame

Perkins.

Thus, because I would conclude that there is a reasonable

likelihood that prejudice would have resulted had there been

suborning of perjury regarding the inducement, I would remand the

case to the district court for an evidentiary hearing on the

subornation issue. The majority dismisses the relevance of what I

see as the most important question in this case -- whether the

prosecutor knew or should have known of Martin's apparent perjury.

Agurs, 427 U.S. at 103. I would remand for a factual finding on

precisely that issue.

In a case where guilt and a significant prison sentence

hinged on the testimony of one man -- an admitted drug dealer

facing criminal charges of his own -- and where there is a

supported claim of suborned perjury regarding material that might

well have impeached the credibility of that sole witness, I believe

an evidentiary hearing to determine whether subornation actually

occurred is appropriate and just.

I therefore respectfully dissent.

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