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Perkins v. Kelley

United States District Court, E.D. Arkansas, Western Division

December 4, 2017

ANDREW TYLER PERKINS PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         PRIOR STATE AND FEDERAL COURT PROCEEDINGS. Respondent Wendy Kelley (“Kelley”) represents that in April of 2014, Montgomery County, Arkansas, Sheriff David White was walking past the dispatch window at the county jail when he saw petitioner Andrew Tyler Perkins (“Perkins”) speaking with a jailer. See Docket Entry 7 at CM/ECF 1. Kelley represents that the following then occurred:

... Perkins appeared to be having difficulty understanding directions and standing still. ... Sheriff White went out in the hall to talk to Perkins and learned that he was bringing some items for an inmate. ... Sheriff White observed that Perkins appeared to be under the influence of a stimulant because of his body language, demeanor, and apparent inability to control his body movements, so he decided to follow Perkins out of the jail. ...
As Sheriff White drove past the parking lot of the courthouse, he observed Perkins in the driver seat of a white car with the door open. ... He then saw Perkins walk back into the courthouse, and he called parole officer Frank Gibson. ... Gibson met Sheriff White outside and they heard Perkins singing and saw him skipping as he came out of the courthouse. ... After they engaged in a short conversation, Perkins continued to exhibit erratic behavior, included jumbled speech and an apparent inability to control his body movements. ... Sheriff White and Gibson asked Perkins to place his hands on a picnic table. ... When Perkins placed his hands on the table, he behaved as though he had placed his hands on a hot skillet. ... Perkins was then arrested for public intoxication.
Officer Gibson found some keys, an envelope with cash, and a couple [of] car titles in Perkins' pocket. ... Perkins told Gibson that one of the keys belonged to the car he was walking toward. ... Perkins told Gibson the car belonged to his brother. ... Gibson opened the car and found a Mountain Dew can next to the driver's side seatbelt latch, which had scrape markings and residue on it. ... He then found a used syringe in the eyeglass compartment. ... He then gave the items to Sheriff White for analysis by the Arkansas State Crime Lab, which yielded a positive result for methamphetamine. ...

See Docket Entry 7 at CM/ECF 1-3.

         Perkins was then charged with possessing drug paraphernalia (methamphetamine) and public intoxication. The State of Arkansas was represented by Prosecuting Attorney Andy Riner (“Riner”). Prior to trial, Perkins filed a motion seeking to disqualify Riner. See Docket Entry 7, Exhibit 1A at CM/ECF 37. In the motion, Perkins asked that Riner be disqualified because Riner had represented Perkins in 2009. The motion was denied. See Docket Entry 7, Exhibit 1A at CM/ECF 90-92. Perkins was eventually convicted of possessing drug paraphernalia (methamphetamine) and public intoxication.

         Perkins appealed his convictions. His only claim on appeal was that “the trial court abused its discretion by not granting him a continuance after voir dire.” See Perkins v. State of Arkansas, 2016 Ark.App. 252, __ S.W.3d __, 2016 WL 2604636, 1 (2016).[1] The Arkansas Court of Appeals affirmed his convictions by memorandum opinion, noting in full the following: “When the only issue is whether the trial court abused its discretion, we may affirm by memorandum opinion [footnote omitted]. We have examined the parties' briefs and the applicable law, and we find no abuse of discretion by the trial court in denying the continuance.” See Id.

         Perkins then filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. See Docket Entry 7, Exhibit 4. Kelley has summarized Perkins' petition. The Court adopts the summary in full, and it is as follows:

... In his petition, Perkins claimed that the vehicle he was observed sitting in prior to his arrest belonged to his brother and that it was abandoned. He claimed that he did not consent to the search of the vehicle and that exigent circumstances did not exist to support a warrantless search of the vehicle. Perkins argued that the contraband recovered from the vehicle was illegally obtained pursuant to a warrantless search and should have been excluded at trial. He claimed that Officer Frank Gibson, a parole officer, had no authority to search his vehicle and that the contraband he found should have been suppressed. Perkins concluded that, had his trial counsel filed a motion to suppress, the search of the vehicle would have been “declared illegal, ” and the outcome of his trial would have been different.

See Docket Entry 7 at CM/ECF 3-4. The petition was denied because Perkins failed to show that counsel erred in any respect. See Docket Entry 7, Exhibits 5, 6.

         On September 28, 2016, Perkins appealed the denial of his Rule 37 petition. The record on appeal was never lodged, though, because it was not filed “within [ninety] days from the date of the filing ...


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