Perkins v. Dretke ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 24, 2005
Charles R. Fulbruge III
Clerk
No. 03-21168
Summary Calendar
KENNETH BRUCE PERKINS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
4:02-CV-2235
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Kenneth Bruce Perkins was convicted in
state court of four counts of aggravated sexual assault involving
two of his minor grandchildren and was sentenced to serve 30 years
in prison. Perkins filed a 28 U.S.C. § 2254 habeas corpus petition
to challenge this conviction, and he now appeals the magistrate
judge’s dismissal of that petition. Perkins contends that the
magistrate judge erred in (1) concluding that he had not rebutted
the state court’s factual findings by clear and convincing
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
evidence, and (2) denying relief on his claim that counsel rendered
ineffective assistance for failing to procure and use evidence
related to suggestive questioning of children.
When considering a district court’s ruling on a § 2254
petition, we review that court’s findings of fact for clear error
and its conclusions of law de novo. Collier v. Cockrell, 300 F.3d
577, 582 (5th Cir. 2002). Perkins cites to several articles and
affidavits in support of his argument that he has rebutted the
state court’s factual findings by clear and convincing evidence.
A few of these documents do rebut the state court’s finding
concerning whether particular research was available at the time of
trial. Nevertheless, it is not clear that Perkins has met the
clear and convincing evidence standard as to this particular
finding. There is no need, however, to settle this issue
definitively, for even if we assume arguendo that Perkins has
rebutted one of the state court’s findings by clear and convincing
evidence, he still is not entitled to relief. He has neither
rebutted the remainder of the state court’s findings nor shown that
he should prevail on his ineffective assistance claim.
Perkins contends that counsel rendered ineffective assistance
for not procuring evidence pertaining to suggestive questioning of
children and using that evidence at trial. To obtain relief based
on ineffective assistance of counsel, a habeas petitioner must
demonstrate both that his attorney’s performance was deficient and
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that his deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984).
As the state courts denied Perkins’s ineffective assistance
claims on their merits, the deferential standard of review found in
28 U.S.C. § 2254(d) guides our consideration of this issue. See
Barrientes v. Johnson, 221 F.3d 741, 779-80 (5th Cir. 2000). Under
that standard, Perkins is not entitled to relief on his ineffective
assistance claim unless he shows that the state court’s rejection
was contrary to, or involved an unreasonable application of,
federal law as determined by the Supreme Court. See Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000); § 2254(d)(1).
A state court decision is contrary to clearly established
federal law if it “applies a rule that contradicts the governing
law set forth” in Supreme Court cases or “if the state court
confronts a set of facts that are materially indistinguishable from
a decision of [the Court] and nevertheless arrives at a result
different from [the Court’s] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A state court decision involves
an unreasonable application of clearly established federal law
if the state court “correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Id. at 407-08.
Perkins has not shown that the state court’s rejection of his
ineffective assistance claim was contrary to federal law. There is
no indication in the record that the state court’s rejection of
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this claim involved the application of a rule that was contrary to
one announced by the Court or that this case was factually similar
to a case considered by the Court. Accordingly, the state court’s
rejection of this claim was not contrary to clearly established
federal law. See Williams, 529 U.S. at 405-06.
Neither is the state court’s rejection of Perkins’s claim of
ineffective assistance of counsel unreasonable. The record shows
that counsel vigorously defended Perkins at trial, expressly
referring to the allegedly improper questioning of the victims
during cross-examination of several witnesses. Counsel called
several defense witnesses, one of whom testified about the
allegedly improper techniques used to interview the victims. To
the extent that Perkins is arguing that counsel rendered
ineffective assistance for failure to present enough evidence
relating to improper questioning of the victims, this argument is
insufficient to show that counsel rendered ineffective assistance.
See Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000).
Perkins has shown no reviewable error in the magistrate
judge’s rulings. Accordingly, the judgment of the district court
is, in all respects,
AFFIRMED.
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