Gary L. Perrot v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13639 ELEVENTH CIRCUIT
JULY 10, 2012
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-02043-VMC-TBM
GARY L. PERROT,
llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllllRespondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 10, 2012)
Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Gary L. Perrot, a Florida prisoner, appeals pro se the denial of his petition
for a writ of habeas corpus challenging his conviction of four counts of sexual
battery. 28 U.S.C. § 2254; see Fla. Stat. § 794.011(3). We granted a certificate of
appealability to resolve “[w]hether Perrot’s counsel was ineffective for failing to
object to the jury instruction, which allowed conviction under [section] 794.011(3)
[of the Florida Statutes] if the jury found that Perrot had either used or threatened
to use a deadly weapon or used actual physical force likely to cause serious
personal injury, when the information charged only use of a deadly weapon.”
Because the decision of the Florida courts that Perrot’s counsel acted effectively is
not contrary to or an unreasonable application of clearly established federal law,
we affirm.
I. BACKGROUND
In 1995, Perrot was charged by criminal information for crimes related to
his sexual abuse of his former girlfriend, Juanita Meeks. The information charged
Perrot with tampering with a witness, id. § 914.22, kidnaping using a deadly
weapon, id. § 787.01(1)(a)(3), and four counts of sexual battery, id. § 794.011(3).
Each count of sexual battery alleged that “in the process” of the crime Perrot
“use[d] or threaten[ed] to use a deadly weapon, to-wit: a knife.” Id. Before trial, a
Florida court granted the prosecutor’s motion to nolle pros Perrot’s charge of
witness tampering.
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During the trial in October 1996, Meeks testified that she was sexually
battered by Perrot. Meeks testified that she began a romantic relationship with
Perrot in March 1994 that ended in November 1995, but she agreed to visit him
during the evening of Christmas Day. Meeks decided to spend the night after
Perrot offered to sleep on the couch. After Meeks climbed into bed, Perrot handed
her a letter stating that he was going to force her to have intercourse and would
give her an ice water enema if she resisted. Meeks struggled with Perrot and
poked him in the eye. Perrot “slammed his hand over [Meeks’s] mouth” and
threatened to beat her “within an inch of [her] life” if she continued. When Meeks
resumed struggling, Perrot threatened to “go into the kitchen and get a knife to
make you let me tie you.” Meeks protested, and Perrot obtained a knife from a
drawer in his nightstand and pressed the knife against Meeks’s throat. Meeks
grabbed the knife and cut her thumb. Meeks then asked Perrot if he would kill
her, and Perrot responded, “I don’t want to kill you. But you bet your sweet ass
I’ll kill you if you don’t stop, if you don’t let me tie your arms.” Meeks relented,
“got really quiet” and “did whatever [Perrot] said.”
Meeks testified that Perrot bound her arms and legs and photographed her in
various poses. For one of the poses, Perrot inserted an enema bottle in Meeks’s
rectum, but Perrot did not release the water. Later, Perrot loosened Meeks’s
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straps, performed oral sex on Meeks, and then forced Meeks to perform oral sex
on him and have intercourse. Perrot eventually freed Meeks from her bonds, but
she was too fearful to attempt an escape that evening.
Meeks testified that Perrot forced her the next morning to have intercourse a
second time, and then Perrot permitted her to leave for work. Meeks met a friend
and the two women went to a police station, where Meeks reported the abuse and
the police recorded a telephone call from Meeks to Perrot. During the telephone
call, Meeks twice mentioned that Perrot used a knife during the sexual abuse, and
Perrot on several occasions asked Meeks if she was at a police station. When
Meeks first asked Perrot why he put a knife to her neck, Perrot responded, “If you
want to talk about anything, then come by and talk to me.” Later, Meeks accused
Perrot of putting a knife to her neck and threatening to kill her, and Perrot
responded, “you know damn well that wasn’t going to be the case.” Perrot asked
Meeks to return the letter that he had given her because he did not “think it’s good
to have it floating around.”
Other evidence supported Meeks’s version of events. A nurse testified that
Meeks had a swollen upper lip and a half-inch cut on her left thumb. A police
officer who searched Perrot’s residence testified that he discovered blood on the
sheets in Perrot’s bedroom, and a forensic serologist testified that Meeks’s blood
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was on the sheets. Paula Robertson, a friend of Perrot’s, testified that Perrot
invited her to visit after the police searched his house and Perrot retrieved a
bloodstained washcloth from his kitchen. Perrot told Robertson that Meeks was
cut accidently after startling Perrot in the kitchen and they used the washcloth to
remove blood from Meeks’s clothes. Beth George, Perrot’s former wife, testified
that, when she visited Perrot to help him complete tax returns, he tied up George’s
arms and legs, put a gun in her mouth, and raped her.
The trial court granted Perrot a judgment of acquittal on the kidnaping
charge on the ground that Meeks’s confinement was integral to the sexual battery,
but the trial court submitted the four charges of sexual battery to the jury. During
closing arguments, Perrot argued that reasonable doubt existed about whether he
had used a knife based on the failure of the police to recover a knife and the
testimony that Meeks had cut her hand in the kitchen. In response, the prosecutor
argued that the blood on Perrot’s sheets, the cut on Meeks’s thumb, and Perrot’s
tacit admission about using a knife proved that Perrot used a knife to sexually
batter Meeks.
The trial court instructed the jury that the state was required to prove that,
“in the process” of each sexual battery, Perrot “(a) used or threatened to use a
deadly weapon; (b) used actual physical force likely to cause serious personal
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injury.” Perrot did not object to the jury instructions, but the prosecutor objected
and argued that the instruction suggested incorrectly that it had to prove both
means of force. The trial court agreed with the prosecutor, recalled the jury, and
instructed the jury to insert an “or” between “used or threatened to use a deadly
weapon” and “used actual physical force.”
The jury convicted Perrot of the four counts of sexual battery. The verdict
form read that the jury found Perrot guilty of “Sexual Battery with Great Force, as
charged.” The trial court sentenced Perrot to three concurrent terms of life
imprisonment for his crimes involving the enema bottle, intercourse, and oral sex
on Perrot. The trial court sentenced Perrot to a consecutive term of life
imprisonment for the battery in which he performed oral sex on Meeks.
The court of appeals affirmed Perrot’s convictions, but vacated his sentence
to a consecutive term of imprisonment and remanded for resentencing. Perrot v.
State, 712 So. 2d 797, 798 (Fla. Dist. Ct. App. 1998). On remand, the trial court
sentenced Perrot to a concurrent term of life imprisonment. Later, Perrot had his
sentences vacated on the ground that his sentencing guidelines had been declared
unconstitutional, and Perrot received new sentences of four concurrent terms of
269 months of imprisonment. See Perrot v. State, 951 So. 2d 843 (Fla. Dist. Ct.
App. 2007).
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In 1999, Perrot moved for post-conviction relief under Florida Rule of
Criminal Procedure 3.850. Perrot argued that trial counsel was ineffective for
failing to object to the jury instruction. Perrot argued that his information did not
charge him for committing battery using “actual force likely to cause serious
personal injury,” and that the jury would have acquitted him of sexual battery if
counsel had objected and the jury had been instructed only about the use of a
“deadly weapon” because the state failed to prove that he used the knife during
any of the sexual activities. Perrot reasoned that the jury was unable to convict
him for using a “deadly weapon” and instead convicted him of using “actual
force.”
The state court rejected Perrot’s argument that his trial counsel had been
ineffective. The state court ruled, based on the testimony from Meeks about
“bec[oming] compliant . . . once [Perrot] threatened to use the knife to kill her,”
that “there was evidence that [Perrot] had threatened to use a deadly weapon in the
course of the sexual battery.” The court of appeals affirmed the ruling of the state
court about the jury instruction but remanded for the trial court to address a
different issue. Perrot v. State, 765 So. 2d 85, 85–86 (Fla. Dist. Ct. App. 2000).
The trial court denied relief, and the court of appeals affirmed summarily. Perrot
v. State, 919 So. 2d 448 (Fla. Dist. Ct. App. 2006).
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Perrot later filed two other unsuccessful collateral challenges to his
convictions. In November 2007, Perrot petitioned for a new appeal and argued
that appellate counsel was ineffective, but the state courts denied relief summarily.
Perrot v. State, 969 So. 2d 1031 (Fla. Dist. Ct. App. 2007). The next month,
Perrot filed a motion for post-conviction relief that the state courts also denied
summarily. Perrot v. State, 5 So. 3d 679 (Fla. Dist. Ct. App. 2009).
In 2009, Perrot filed in the district court a petition for a writ of habeas
corpus raising 38 grounds for relief, including his argument that trial counsel had
been ineffective for failing to object to the jury instruction. Perrot argued that the
jury had returned a general verdict, which made it impossible to discern whether
the jury had found him guilty of using “deadly weapon” or “actual force,” and that
both means of force were “disputed” at trial, but he had not been notified that he
would have to defend against evidence about “actual force.” Perrot argued that,
had defense counsel objected, the “actual force” language would have been
removed from the jury instructions, and he would have been acquitted because he
presented evidence that Meeks had been cut while washing dishes.
In response, the state argued that Perrot “exhausted [his argument only] to
the extent alleged . . . in his first state post-conviction motion” and the state courts
reasonably applied clearly established federal law to deny relief. The state argued
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that Perrot was not entitled to habeas relief because, “[a]s there was no error in the
jury instructions, . . . counsel’s performance cannot be deemed deficient for
foregoing objection to the instruction”; the jury instruction was not erroneous
because Perrot had notice of the “actual force” theory through his information,
which referenced section 794.011(3); and Perrot was not prejudiced by the jury
instruction because the evidence established that he used both a “deadly weapon”
and “actual force” to sexually batter Meeks.
The district court denied Perrot’s petition. The district court construed
Perrot’s petition to argue “that counsel should have objected because Perrot was
not charged with using physical force likely to cause serious injury and had no
notice of this element of the charged offenses.” The district court ruled that the
“state trial judge properly instructed the jury in accordance with the statute under
which Perrot was charged in the information and in accordance with the
appropriate standard jury instruction” and that “Parrot cannot demonstrate either
that the information failed to apprise him of the applicable statute under which he
was charged or that counsel had a basis upon which to object to the jury
instruction.”
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II. STANDARD OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus that
alleges ineffective assistance of counsel. Johnson v. Sec’y, DOC, 643 F.3d 907,
929 (11th Cir. 2011). A petitioner is entitled to a writ of habeas corpus only if the
state court reached a decision that was “contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state
court makes an “unreasonable application” of clearly established federal law only
if the court “ ‘identifies the correct governing legal principle from [the] decisions
[of the Supreme Court] but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527,
2534–35 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495,
1523 (2000)). To prevail on an argument involving an unreasonable application
of federal law, a petitioner “must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. ___, 131 S. Ct.
770, 786–87 (2011).
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III. DISCUSSION
Perrot must “[s]urmount[] [a particularly] high bar” to obtain a writ of
habeas corpus based on ineffective assistance of counsel. Padilla v. Kentucky,
559 U.S. ____, 130 S. Ct. 1473, 1485 (2010). Perrot must not only prove that his
counsel committed an error and that error was “so serious as to deprive [him] of a
fair trial,” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), but he also must overcome the “doubly deferential” standard applied to the
decisions of counsel in habeas corpus review. Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 1420 (2009). We are required to determine “not
whether counsel’s actions were reasonable[,]” but instead “whether there [was]
any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 131 S. Ct. at 788.
Perrot’s claim of ineffective assistance fails. Perrot argued in the state
courts that counsel was ineffective for failing to object to the jury instruction
because the jury must have convicted Perrot of using actual force. The Florida
courts reasonably concluded that Perrot’s counsel would think that an objection to
the jury instruction would fail “in [the] light of information then available to
counsel.” Premo v. Moore, 562 U.S. at ____, 131 S. Ct. 733, 741 (2011); see
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“A fair assessment of attorney
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performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.”). When
Perrot was tried for sexually abusing Meeks, “it [was] settled [law in Florida] that
‘the state [could] substantively amend an information during trial, even over the
objection of the defendant, unless there [was] a showing of prejudice to the
substantial rights of the defendant.’” Young v. State, 632 So. 2d 245, 246 (Fla.
Dist. Ct. App. 1994) (quoting State v. Anderson, 537 So. 2d 1373, 1375 (Fla.
1989)). Based on the law that governed Perrot’s trial, there was no reason for
defense counsel to object to the jury instruction. The prosecutor had the right to
amend Perrot’s information because it “referenc[ed] section 794.011(3), which
specifically define[d] all the elements of the offense,” and did not “misle[a]d or
embarrass[] [Perrot] in the preparation of his defense.” DuBoise v. State, 520 So.
2d 260, 265 (Fla. 1988); see Fla. R. Crim. P. 3.140(o). Perrot’s counsel did not
render deficient performance. Moreover, Perrot suffered no prejudice. There was
ample evidence that Perrot battered Meeks while using or threatening to use a
deadly weapon. See Warren v. State, 635 So. 2d 122, 124 (Fla. Dist. Ct. App.
1994). As stated by the state court, Meeks’s testimony that she “became compliant
. . . once [Perrot] threatened to use the knife to kill her” established that “there was
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evidence that [Perrot] had threatened to use a deadly weapon in the course of the
sexual battery.”
We AFFIRM the denial of Perrot’s petition for a writ of habeas corpus.
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