Julius Q. Perkins v. State of Tennessee ( 2022 )

10/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 27, 2022
JULIUS Q. PERKINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2002-A-569 Angelita Blackshear Dalton, Judge
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No. M2022-00268-CCA-R3-PC
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Pro se petitioner, Julius Q. Perkins, filed a motion seeking relief from his felony murder
conviction pursuant to the Post-Conviction DNA Analysis Act of 2001 and the Post-
Conviction Fingerprint Analysis Act of 2021. Said motion was summarily dismissed by
the trial court. Because the instant notice of appeal was not timely filed, and the petitioner
has failed to provide any basis to excuse the untimely filing, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and TOM GREENHOLTZ, JJ., joined.
Julius Q. Perkins, Pikeville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and Jan Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 9, 2001, the petitioner and a co-defendant went to the apartment
building of the victim to purchase drugs. During the transaction, the unarmed victim was
fatally shot and killed. State v. Julius Q. Perkins, No. M2003-01761-CCA-R3-CD, 2005
WL 49339, *2-3 (Tenn. Crim. App. Jan. 6, 2005), perm. app. denied (Tenn. Oct. 31, 2005).
The petitioner provided a videotaped statement to police admitting that neither he nor the
co-defendant had any money prior to meeting with the victim, that another man had given
them some money, and that immediately before the co-defendant drew his gun on the
victim, the petitioner heard the victim say, “man, this ain’t enough.” The petitioner
testified on his own behalf at trial and confirmed the videotaped statement. While the
petitioner denied prior knowledge of a plan to rob the victim, he agreed that he was armed
and fired one shot from his weapon during the offense. The petitioner was subsequently
convicted of felony murder and sentenced to life imprisonment, both of which were
affirmed by this court on direct appeal. Id. at * 3-4. The petitioner then engaged in extensive
post-conviction litigation seeking to collaterally challenge his conviction and sentence. See
Julius Q. Perkins v. State, No. M2011-00522-CCA-R3-PC, 2012 WL 1484193 (Tenn.
Crim. App., Apr. 24, 2012), perm. app. denied (Tenn. Aug. 15, 2012) (affirming denial of
post-conviction relief alleging ineffective assistance of counsel, trial court error, and
prosecutorial misconduct); Julius Q. Perkins v. Steward, No. 3:12-1187, 2013 WL 522719,
at *4 (M.D. Tenn. Feb. 11, 2013) (rejecting pro se petitioner’s federal petition for writ of
habeas corpus upon finding that the state court adjudication of petitioner’s claims was
neither contrary to nor an unreasonable application of federal law); Julius Q. Perkins v.
Parris, No. W2016-02341-CCA-R3-HC, 2018 WL 369778 (Tenn. Crim. App. Jan. 10,
2018), perm. app. denied (Tenn. Mar. 18, 2018) (affirming summary dismissal of pro se
petition for writ of habeas corpus relief).1
On September 10, 2021, the petitioner filed the instant motion for post-conviction
relief pursuant to the Post-Conviction DNA Analysis Act of 2001 and the Post-Conviction
Fingerprint Analysis Act of 2021. In his post-conviction petition, the petitioner requested
DNA analysis testing on a mask that was entered into evidence at trial and fingerprint
analysis testing on the bullets and shell casings found at the scene. The petitioner alleged
that the requested DNA analysis testing would have proven his innocence. By written
order on January 18, 2022, the post-conviction court summarily dismissed the motion
because it did not satisfy the requirements of either statute. The post-conviction court
specifically determined that the petitioner “failed to demonstrate that potentially favorable
testing would undermine the confidence in the outcome of the prosecution” because “[the
petitioner] placed himself at the scene of the crime, was aware that the purpose for being
at the scene was to engage in a drug transaction and made an admission to discharging his
weapon while at the scene.” The petitioner filed an untimely notice of appeal on March 1,
2022.
ANALYSIS
Tennessee Rule of Appellate Procedure 4(a) states, “the notice of appeal required by
Rule 3 shall be filed with the clerk of the appellate court within 30 days after the date of
entry of the judgment appealed from; however, in all criminal cases the ‘notice of appeal’
document is not jurisdictional and the timely filing of such document may be waived in the
1
The trial court order summarily dismissing the instant motion detailed further litigation which
was apparently not appealed by the petitioner including (1) a February 27, 2019 motion to reopen post-
conviction relief (denied by order on May 3, 2019); and (2) an April 14, 2020 pro se petition for writ of
coram nobis and motion to reconsider denial of same (denied by order respectively on May 18, 2020, and
July 8, 2020).
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interest of justice.” Tenn. R. App. P. 4(a). “Waiver is not automatic and should only occur
when ‘the interest of justice’ mandates waiver. If this court were to summarily grant a
waiver whenever confronted with untimely notices, the thirty-day requirement of
Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal fiction.” State v.
Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (citing Michelle Pierre Hill v.
State, No. 01C01-9506-CC00175, 1996 WL 63950, at *1 (Tenn. Crim. App. Feb. 13,
1996)). “‘In determining whether waiver is appropriate, this court will consider the nature
of the issues presented for review, the reasons for and the length of the delay in seeking
relief, and any other relevant factors presented in the particular case.’” Id. (quoting State
v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn.
Crim. App. Dec. 27, 2005); see also, State v. Steven C. James, No. E2021-00559-CCA-R3-
CD, 2022 WL 633540, at *1 (Tenn. Crim. App. Mar. 4, 2022) (declining to find the interest
of justice mandated waiver where pro se defendant’s notice of appeal was seventeen days
late without requesting a waiver or providing an explanation for the untimely filing).
The order summarily dismissing the petitioner’s motion was filed on January 18,
2022. As such, the notice of appeal should have been filed within thirty days or no later
than February 17, 2022. The petitioner filed his notice of appeal on March 1, 2022, twelve
days after the deadline. The petitioner did not address the timeliness issue on the merits in
his opening brief. We observe however in the section designated, “Statement of the Case,”
the petitioner states, albeit incorrectly, that the post-conviction court “dismissed the
petition on February 28, 2022,” and that the notice of appeal was accordingly timely filed.
Nevertheless, even after the State filed its responsive brief raising the timeliness issue as
grounds for dismissal, the petitioner did not request a waiver, nor has he offered any
explanation as to why this court should excuse the untimely filing.
We have also considered the nature of the issues presented and conducted a
thorough review of the petitioner’s brief, both of which support dismissal. Here, we are
mindful that the petitioner was acquitted of the alternative premeditated first-degree murder
charge. State v. Julius Q. Perkins, No. M2003-01761-CCA-R3-CD, 2005 WL 49339, at
*1. His conviction of felony murder was based upon the theory that the victim was killed
during the commission of an attempt to commit a robbery or the theory that the petitioner
was criminally responsible for the conduct of another, his co-defendant. Id. at *4. The
petitioner seeks DNA and fingerprint testing of certain evidence at the crime scene;
however, he does not dispute his videotaped admission or his trial testimony admitting to
his presence at the crime scene and discharging his weapon at the time the victim was shot
and killed. Moreover, while cast under a different legal framework, the petitioner appears
to be raising the same issue previously rejected by this court and fails to assert how such
testing would establish his innocence. See Julius Q. Perkins v. State, No. M2011-00522-
CCA-R3-PC, 2012 WL 1484193, at *2 (detailing testimony of trial counsel regarding his
handling of the ski mask found at the petitioner’s home and rejecting ineffectiveness claim
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based on same). Under these circumstances, we conclude the interest of justice does not
mandate waiver of the petitioner’s untimely filing of his notice of appeal. Accordingly, the
appeal is dismissed.
CONCLUSION
Based on the foregoing, the appeal is dismissed.
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CAMILLE R. MCMULLEN, JUDGE
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