United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
William C. Lee, Judge United States District Court
Dwayne Perryman, a pro se prisoner, filed an amended
habeas corpus petition challenging his 2006 conviction in
Elkhart County for possession of cocaine with intent to
deliver and possession of marijuana. (DE 4.) For the reasons
stated below, amended petition (DE 4) is DENIED and Perryman
is DENIED a certificate of appealability. The clerk is
DIRECTED to close this case.
deciding the petition, the court must presume the facts set
forth by the state courts are correct. 28 U.S.C. §
2254(e)(1). It is Perryman's burden to rebut this
presumption with clear and convincing evidence. Id.
The Indiana Court of Appeals set forth the facts underlying
Perryman's conviction as follows:
On May 4, 2003, Corporal Brian Schroth of the Elkhart Police
Department supervised a controlled drug buy from a residence
at 210 W. Washington St. in Elkhart. Corporal Schroth
utilized a confidential informant (“C.I.”) who
had in the past provided him reliable information. Prior to
the buy, the C.I. was searched and given a $20.00 bill that
had been photocopied.
Corporal Schroth, the C.I., and another officer arrived at
the residence. The C.I. went to the door and Michelle Weekly
answered. The C.I. asked for a “twenty, ” (Tr. at
254) meaning $20.00 of crack cocaine. Weekly handed Perryman
a “bag of rocks.” (Id.) Perryman
retrieved one rock of cocaine from the bag and handed the
rock to the C.I. The C.I. gave Perryman the $20.00 and left
When police searched the C.I., they found only the rock of
cocaine. Corporal Schroth obtained a search warrant that was
executed the next day. Lieutenant Leif Freehafer arrived to
search Perryman's house and saw Perryman and a white
female leave the house and get into a white car. Lt.
Freehafer blocked Perryman's car so it could not leave,
and shortly thereafter the SWAT team entered the house.
Weekly was standing in the middle of the living room, and
there was a partially smoked blunt in the ashtray.
A search of the house revealed a vent in the basement that
did not appear to be connected to heating equipment. Two bags
were found in the vent. One contained 35 bags of individually
wrapped rocks of crack cocaine totaling 11.36 grams and the
other contained ten individually wrapped bags of marijuana
totaling 14.92 grams.
A jury found Perryman guilty of possession of cocaine and
marijuana. At sentencing, the trial court found as
aggravating circumstances Perryman's criminal history,
his status as a probationer at the time of this offense, and
the amount of drugs found in the residence. The trial court
declined to place any weight on the mitigating circumstances
suggested by Perryman and imposed a sentence of fifty years
on the Class A felony and one year on the Class A
misdemeanor, which sentences were to run concurrently.
Perryman v. State, No. 20A03-0609-CR-408
(Ind.Ct.App. April 9, 2007), slip op. 2-3.
direct appeal, Perryman raised the following claims: (1) the
trial court erred in admitting evidence found during a search
from an illegal search warrant; and (2) the evidence was
insufficient to support the convictions. (DE 9-4.) The
Indiana Court of Appeals affirmed his conviction and
sentence. (DE 9-6.) Perryman sought transfer to the Indiana
Supreme Court raising these same claims (DE 9-7), but his
petition was denied. (DE 9-3.)
Perryman pursued state post-conviction relief. (DE 9-8; 9-9.)
Following an evidentiary hearing, the petition was denied.
(DE 9-9.) On appeal of his post-conviction denial, he argued
that his trial counsel was ineffective and that the trial
court failed to maintain a complete audible recording of the
proceedings. (DE 9-11.) The court rejected these arguments
and affirmed the denial of post-conviction relief, (DE 9-14),
making the following additional findings of fact:
Between approximately 8:00 p.m. and 10:00 p.m. on May 4,
2003, Elkhart City Police Corporal Brian Schroth supervised a
controlled drug buy from a residence at 210 W. Washington
Street in Elkhart, which was a property rented by Perryman.
Corporal Schroth searched the confidential informant
(“C.I.”) and gave him twenty dollars. Corporal
Schroth, Corporal Dave Baskins, and the C.I. arrived at the
residence, the C.I. entered the residence, and Perryman and
Michelle Weekly were present inside. Perryman asked the C.I.
what he wanted, and the C.I. said that he wanted “20,
” which indicated that he wanted crack cocaine worth
twenty dollars. 2006 Transcript at 273. Weekly then went to
the bedroom and retrieved a bag, handed the bag to Perryman,
and Perryman handed crack cocaine to the C.I. The C.I. was in
the residence for approximately one to two minutes, exited
the residence, and went straight to the vehicle containing
Corporal Schroth and handed the crack cocaine to him.
As a result of the information and items gathered, the police
obtained a search warrant. At approximately 10:00 p.m. on May
5, 2003, the police executed the search warrant. Perryman,
Brandy Bowen, and Weekly were present during the execution of
the warrant. The police discovered two bags containing
individually wrapped rocks of crack cocaine in an air duct.
One of the baggies had thirty-five individually wrapped rocks
of crack cocaine. The police found approximately sixteen
grams of crack cocaine, twenty grams of marijuana, and a
marijuana blunt cigar containing approximately 1.7 grams of
marijuana. On May 9, 2003, the State charged Perryman with:
Count I, possession of cocaine in excess of three grams as a
class A felony; Count II, dealing in cocaine as a class B
felony; Count III, maintaining a common nuisance as a class D
felony; and Count IV, possession of marijuana as a class A
misdemeanor. On January 12, 2004, Perryman's counsel
filed a motion to suppress all items seized by law
enforcement officials and any communications made by Perryman
with law enforcement officers. Perryman's counsel argued
that the affidavit for the search warrant was largely
dependent on the unreliable information provided by the C.I.
and was not supported by probable cause.
On February 27, 2004, the State filed a Notice of Intent to
Offer I.R.E. 404(b) Evidence which stated: “It is
anticipated that as part of his defense, [Perryman] will
argue or present evidence that the cocaine was possessed, not
with the intent to deliver, but for his personal use.”
Petitioner's Exhibit 5. The State asserted that it was
permitted to offer evidence relating to the controlled buy of
cocaine and the subsequent search under Evidence Rule 404(b)
to show proof of motive, intent, or absence of mistake or
accident. Perryman's counsel objected and made an oral
motion in limine, which the court overruled.
* * * *
On direct appeal, this court reversed based upon improper
voir dire. Id. at 1011. On March 21, 2006, prior to
the start of his second trial and through new counsel,
Perryman filed a Motion to Suppress or in the Alternative
Motion to reconsider and argued that the information provided
by Corporal Schroth did not come from first-hand knowledge
that a crime had been committed, that Corporal Schroth did
not personally observe any illegal activity inside the
residence, that the information came solely from the
observations related by the C.I. to the officers, and that
the evidence obtained as a result of the illegally issued
search warrant should be suppressed and excluded from
evidence at the trial. On March 23, 2006, the trial court
held a hearing on the renewed Motion to Suppress, which it
subsequently denied on March 27, 2006, the first day of
Perryman's second jury trial. Perryman v. State, No.
20A03-0609-CR-408, slip op. at 4 (Ind.Ct.App. April 9, 2007),
trans. denied. Meanwhile, an entry dated March 23, 2006, in
the chronological case summary indicates that the State still
intended to offer information consistent with the 404(b)
motion filed in the first trial. On March 28, 2006, Perryman
was again found guilty of possession of cocaine in excess of
three grams with the intent to deliver and possession of
* * * *
On appeal, Perryman argued that the trial court improperly
denied his motion to suppress evidence. Id. at 4.
Specifically, Perryman asserted that the evidence seized from
his residence was obtained in violation of Ind. Code §
35-33-5-2(b) and that the search warrant was based upon
hearsay. Id. The court found that Perryman did not
object at trial to the admission of evidence obtained as a
result of the warrant and held that, waiver ...