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Brooks v. Perry

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

May 7, 2019

KEVIN BROOKS, Petitioner,
v.
CLINTON PERRY, JR. WARDEN, Respondent.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at Macon State Prison, brings this 28 U.S.C. § 2254 case raising three grounds for relief all stemming from alleged ineffective assistance of appellate counsel. After an initial review, the Court ordered the respondent to respond. Doc. 8. Respondent did, and requested that the Court deny petitioner relief. Doc. 12-1. Petitioner did not respond. For the following reasons, the petition should be DENIED.

         I. BACKGROUND

         On January 23, 2013, a Chatham County grand jury indicted petitioner Kevin Brooks and co-defendant Brian Jones for armed robbery, false imprisonment, burglary, aggravated assault, kidnapping, possession of cocaine, and possession of a firearm by a convicted felon.[1] Doc. 13-6 at 18-21. According to the Georgia Court of Appeals,

[T]he evidence shows that when the victim pulled into his driveway after being out for the evening, Brooks and Jones, who were armed, approached him from the side of the house. The men said, “You know what this is.” The victim, Brooks, and Jones entered the victim's house, and the men demanded money, drugs, and jewelry. The men began searching the victim's house and took his jewelry and phone. Jones went into a bedroom where the victim's 12-year-old son was sleeping. The boy woke up, and Jones threatened him with a pistol and took his phone. Jones kept the boy in his bedroom through the night. The boy heard another man demanding money, jewelry, and drugs from his father.
The next morning, in order to get the men to leave, the victim told them that he could withdraw money for them from his credit union account. Brooks and the victim drove in the victim's car to downtown Savannah and Jones stayed with the victim's son at the house. The victim drove through the city, hoping to encounter a police officer, while Brooks kept him at gunpoint. The victim saw a police officer and began driving toward her to get her attention. The officer pulled her weapon. The victim jumped out of the rolling car, threw up his hands, and said, “They got a gun!” The car crashed into a building and Brooks fled. The victim told the officer that his son was being held captive at his house. She called for assistance. Officers then saw Brooks enter the back door of a restaurant. The SWAT team found Brooks hiding behind a file cabinet in the restaurant's office. When an officer patted down Brooks, he found in Brooks's pocket a Crown Royal bag containing 10.5 grams of cocaine and the victim's jewelry.
In the meantime, police arrived at the victim's house. Jones hid in the attic. The boy exited the house, and the police took him to the station, where he was reunited with his father. Eventually Jones exited the house, got into the victim's girlfriend's car, backed it out, and fled. The street was a dead-end, and Jones crashed the car into some trees. He exited the car and fled on foot. He was eventually caught in the woods.

Brooks v. State, 772 S.E.2d 838, 842 (Ga.Ct.App. 2015).

         This case challenges the validity of Brooks' 2013 conviction for armed robbery, false imprisonment, burglary, aggravated assault, and possession of a controlled substance following a jury trial. Doc. 13-6 at 178-80. Brooks filed a motion for a new trial raising several claims including whether the indictment against him should have been quashed, whether his case suffered from a Bruton violation, and whether the 404(b) evidence was properly admitted. Doc. 1-3. The motion for a new trial was denied. Id. at 4. Petitioner-along with his codefendant-filed a direct appeal and the Court of Appeals affirmed his convictions. Brooks, 772 S.E.2d 838. On December 4, 2015, petitioner filed a petition for a writ of habeas corpus in Macon County challenging his conviction. Doc. 13-1. He amended this petition three times, finally filing a “Fourth Amendment” on October 12, 2016. See, e.g., doc. 13-4. This amendment raised the following grounds:[2]

1. Appellate counsel failed to show how trial counsel's decision not to quash petitioner's defective indictments in a timely manner prejudice the petitioner.
2. Appellate counsel was ineffective for failing to show trial counsel's ineffectiveness for not filing a motion to sever, or object to any Bruton violation throughout the trial.
3. Appellate counsel was ineffective for failing to show trial counsel's ineffectiveness for not providing proper evidence to support Petitioner's similar transaction claim, and also for appellate counsel's decision not to raise a reversible error involving the courts allowing the similar transaction under admission only, and where Petitioner never had any prior felony convictions, and where the state did not meet required prongs.
4. Appellate counsel was ineffective in failing to show how the evidence the state presented at trial was insufficient to find Brooks guilty beyond a reasonable doubt.

Id. at 1-2. An evidentiary hearing was conducted on December 5, 2016 on the fourth amended petition. Doc. 13-5 at 5-83. On October 10, 2017, the state habeas court denied relief. Doc. 13-11. On September 10, 2018, the Georgia Supreme Court denied petitioner's application for a certificate of probable cause to appeal. Doc. 13-13.

         Petitioner filed this federal petition on October 17, 2018. Doc. 1. He raised three claims:

1. Appellate counsel was ineffective in failing to argue that his trial counsel was ineffective for not quashing both indictments which were returned by a convicted felon.
2. Appellate counsel was ineffective for failing to cite case law or show prejudice when arguing the Bruton violation.
3. Appellate counsel was ineffective for failing to show ineffective assistance on trial counsel's decision not to object to the introduction of the 404(b) evidence.

         The Court granted petitioner leave to proceed in forma pauperis (IFP) and ordered respondent to show cause why relief should not be granted. Doc. 8. Respondent answered. Doc. 12. Respondent argues that the ...


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