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Date: 10-07-2021
Case Style:
KENNETH D. PERRYMAN v. RANDALL WORKMAN, Warden
Case Number: 07-7036
Judge: Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.
Entered for the Court
Elisabeth A. Shumaker, Clerk
Court: UNITED STATES COURT OF APPEALS Clerk of Court
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with
two counts oflewd molestation and one count of forcible sodomy charge. seeks a certificate of appealability (“COA”) in order tochallenge the district court’s dismissal of his habeas petition as time-barred
On October 21, 1993, a jury found Mr. Perryman guilty of two counts of
lewd molestation and one count of forcible sodomy. The District Court of
Okfuskee County sentenced Mr. Perryman to ninety-nine years imprisonment for
each count, to be served consecutively. The Oklahoma Court of Criminal Appeals
affirmed the judgment and sentence on August 17, 1995 in Perryman v. State, No.
F-93-1351. No petition for writ of certiorari was filed.
On April 19, 2004, Mr. Perryman filed a motion in the United States
District Court for the Northern District of Oklahoma which was construed as a
petition for writ of habeas corpus under 28 U.S.C. § 2254. When Mr. Perryman
failed to amend his petition to clarify his intentions, as ordered by the court, the
Northern District dismissed his action without prejudice for failure to prosecute
on April 20, 2005. Meanwhile, Mr. Perryman filed an application for postAppellate Case: 07-7036 Document: 010134021 Date Filed: 09/18/2007 Page: 2
The grounds for relief which appear in the petition are as follows: (1) 2
state court denial of post-conviction relief violates the First Amendment right to
petition for redress of grievances, (2) conviction for multiple counts under a
single indictment or information violates the Fifth Amendment protection against
double jeopardy and refusal to hear the merits of that issue violates the Fourteenth
Amendment Due Process Clause, (3) state court refusal to rule on ineffective
assistance claims was erroneous because these claims were not raised for the first
time on appeal, (4) failures by counsel on direct appeal constitute ineffective
assistance of counsel in violation of the Sixth Amendment, (5) the 297 year
sentence is excessive in relation to the crimes of conviction in violation of the
Eighth Amendment prohibition on cruel and unusual punishment, (6) judicial
response to a jury note requesting clarification without first consulting defense
counsel constitutes judicial misconduct, (7) judicial refusal in front of the jury to
recuse after declining to decrease bail was proof of judicial bias, (8) testimony by
the state witnesses was unreliable and failed to demonstrate guilt beyond a
reasonable doubt, (9) the minimally trained state investigator used improperly
suggestive questioning to elicit the child’s testimony against defendant, (10) the
judge improperly permitted inconsistent testimony to proceed and remain on the
record, (11) the prosecutor committed misconduct during closing argument by
exciting societal alarm, improperly drawing attention to the absence of testimony,
and personally commenting on the evidence, (12) the judge erred by permitting
(continued...)
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conviction relief in the Okfuskee County District Court on July 14, 2004. The
district court denied the application on the grounds that failure to raise the issues
on direct appeal constituted waiver. The Oklahoma Court of Criminal Appeals
affirmed in Perryman v. State, No. PC-2005-929 (Okla. Crim. App. Dec. 15,
2005).
On March 3, 2006, Mr. Perryman filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254 in the United States District Court for the Eastern District
of Oklahoma stating fourteen grounds for relief, ranging from ineffective
assistance of counsel to judicial and prosecutorial misconduct. On March 30, 2
Appellate Case: 07-7036 Document: 010134021 Date Filed: 09/18/2007 Page: 3
(...continued) 2
prosecution under one information of crimes that were not part of the same
transaction, (13) the judge erred in refusing to instruct the jury on the need for
corroboration of the victim’s testimony due to inconsistencies, and (14) the
judge’s failure to permit defendant to address the court before sentencing violated
the right to a fair trial.
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2007, the district court dismissed the petition. Mr. Perryman filed an application
for a COA on July 16, 2007. The application relies on the same fourteen
allegations which appeared in his § 2254 petition.
II. DISCUSSION
Mr. Perryman’s petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, issuance of a COA is a
jurisdictional prerequisite to appealing the dismissal of a habeas petition. 28
U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). In order
to obtain a COA, Mr. Perryman must make “a substantial showing of the denial of
a constitutional right.” 28 U.S. C. § 2253(c)(2). The Supreme Court has clarified
that, where as here the district court denies a habeas petition on procedural
grounds without reaching the merits of the underlying constitutional claims, a
petitioner must show that reasonable jurists would find debatable both (1) whether
the petition states a valid claim of the denial of a constitutional right, and (2)
whether the district court was correct in its procedural ruling. Slack, 529 U.S. at
484. The Supreme Court also has instructed courts to resolve the procedural issue
first. Id. at 485 (citing Ashwander v. TVA, 297 U.S. 288, 347 (1936)).
Appellate Case: 07-7036 Document: 010134021 Date Filed: 09/18/2007 Page: 4
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The procedural bar in this case is AEDPA’s one-year statute of limitations
which begins on the latest of (1) the date the judgment becomes final, (2) the date
on which an impediment created by the state in violation of the Constitution is
removed, (3) the date on which the right was newly recognized by the Supreme
Court, or (4) the date on which the factual predicate of the claims presented could
have been discovered through due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D).
After losing his state appeal on August 17, 1995, Mr. Perryman’s conviction
became final on November 15, 1995, when the ninety-day period for his
certiorari petition to the United States Supreme Court expired. However, because
his conviction was final before AEDPA went into effect, the starting date for the
limitations period is April 24, 1996, the day the statute went into effect. Hoggro
v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Thus, Mr. Perryman had until
April 24, 1997, to collaterally challenge his conviction and sentence. However,
Mr. Perryman did not file his § 2254 habeas petition until May 21, 2006—well
after the limitations period had expired.
Mr. Perryman is not eligible for statutory tolling with respect to the period
during which his state post-conviction claims were pending. Although “[t]he time
during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation,” 28 U.S.C. § 2244(d)(2), Mr.
Perryman did not seek post-conviction relief until July 14, 2004—more than
Appellate Case: 07-7036 Document: 010134021 Date Filed: 09/18/2007 Page: 5
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seven years after the end of the limitations period. A collateral petition filed in
state court after the limitations period has expired does not serve to toll the
statute of limitations. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
Equitable tolling of § 2244(d)(1)’s limitations period is also unavailable
here. It is available “only in rare and exceptional circumstances” such as actual
innocence or when uncontrollable circumstances prevent timely filing. York v.
Galetka, 314 F.3d 522, 527 (10th Cir. 2003). A petitioner must have made “a
diligent effort to pursue his habeas claims.” Mr. Perryman’s claims that he was
delayed in receiving the trial record are insufficient to explain his more than
seven year delay.
Outcome: Consequently, the district court correctly concluded that Mr. Perryman’s
habeas petition is time-barred. Accordingly we DENY his application for a COA
and DISMISS his appeal. Slack, 529 U.S. at 484 (“Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.”).
Plaintiff's Experts:
Defendant's Experts:
Comments: