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Allen v. Perry

United States District Court, S.D. Georgia, Savannah Division

June 25, 2015

EUGENE ALLEN, Petitioner,
v.
GRADY PERRY and BRIAN OWENS, Respondents.

REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

A Chatham County Superior Court jury found Eugene Allen guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Doc. 1 at 1. He received consecutive sentences of life in prison plus twenty years to serve. Id. Represented by counsel before this Court, he petitions for 28 U.S.C. § 2254 relief. Id. The state opposes. Doc. 6.

I. BACKGROUND

On May 26, 2004, petitioner repeatedly visited the home of Raheem Wilson because Wilson had "robbed" him by failing to pay for two ounces of crack cocaine. Allen v. State, 286 Ga. 392, 393-94 (2010). He finally spotted Wilson, Brandon Smalls, and Daniel Johnson sitting on the steps at an apartment complex. Id. He snuck around the building, donned a black cap, ran towards Wilson, and began firing a pistol at the group of men. He killed Wilson with a gunshot wound to the head. Id. Johnson was shot in the hand and the right buttock. Id. Smalls was not injured. Id.

A jury found Allen not guilty of malice murder, but it convicted him of two counts of felony murder, two counts of aggravated assault, and three counts of possessing a firearm during the commission of a crime. Doc. 12-5 at 19-21. At sentencing, the judge imposed the mandatory minimum sentence of life imprisonment as to the first count of felony murder and "merged" it with the second count, since Allen could "only be sentenced once for homicide." Doc. 13-4 at 116-117. He thus sentenced him to serve twenty years' imprisonment for the aggravated assault against Daniel Johnson to run consecutively to the life sentence for felony murder. Id. at 117. On the remaining charges he sentenced Allen to 35 years' probation, to run concurrently with his life-plus-twenty-year sentence. Id. at 117.

Allen's conviction and sentence survived appeal. Allen, 286 Ga. at 399. He then petitioned for habeas corpus in Calhoun County, Georgia. Doc. 8-1. That court held a hearing on the motion and denied the petition. Doc. 8-3. After his certificate of probable cause to appeal was denied, doc. 8-5, he filed the instant § 2254 petition in this court. Doc. 1.

II. STANDARD OF REVIEW

State court adjudications must "be given the benefit of the doubt" on federal habeas review. Felkner v. Jackson, 562 U.S. 594, 131 S.Ct. 1305, 1307 (2011) (quotes and cites omitted). This Court cannot disturb them unless they

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added). "Clearly established" means a Supreme Court holding, not dicta, that existed at the time of the state court decision that applied the legal principle at issue. Cullen v. Pinhoister, 563 U.S. ___, 131 S.Ct. 1388, 1399 (2011); Bowles v. Sec'y for Dep't of Corrs., 608 F.3d 1313, 1315 (11th Cir. 2010). Lower court opinions, even if directly on point, will not suffice. Bowles, 608 F.3d at 1316.

Allen thus faces a highly deferential, "difficult to meet" standard on federal habeas review. Harrington v. Richter, 562 U.S. 86, 102 (2011); Cullen 131 S.Ct. at 1398. "[A] state prisoner 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." Hill v. Humphrey, 662 F.3d 1335, 1345 (11th Cir. 2011) (en banc) ( quoting Harrington, 562 U.S. at 103).

Allen's ineffective assistance of counsel ("TAC") claims face an additional hurdle. Even when reviewed de novo, JAC claims are subject to their own internal layer of deference. Strickland v. Washington, 466 U.S. 668 (1984). "Defendant[s] must show both deficient performance and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). A lawyer's representation is deficient when it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688. And courts apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id. at 689. Strickland error must be so serious "that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. To establish prejudice, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

"Surmounting Strickland's high bar is never an easy task, " Harrington, 562 U.S. at 88 (cite omitted), and no hindsight or second-guessing is permitted. Id. But where a state court has already ruled on JAC claims, the petitioner's burden of

[e]stablishing that [its] application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, ' id., at 689 [104 S.Ct. 20521; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059) 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is doubly' so, Knowles, 556 U.S., at ____, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ____ [129 S.Ct., at 14201. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) ...

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