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Parker v. Winn

United States District Court, E.D. Michigan, Southern Division

July 20, 2015

AVERY PARKER, Petitioner,
v.
THOMAS WINN, Respondent,

OPINION AND ORDER HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE AND ADMINISTRATIVELY CLOSING THE CASE.

HONORABLE GERALD E. ROSEN CHIEF UNITED STATES DISTRICT JUDGE

Avery Parker, (“Petitioner”), confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.§ 2254, challenging his convictions for first-degree criminal sexual conduct, M.C.L.A. 750.520b, unlawful imprisonment, M.C.L.A. 750.349b; fourth-degree criminal sexual conduct, M.C.L.A. 750.520e; aggravated domestic violence, M.C.L.A. 750.81a(2), and being a fourth felony habitual offender, M.C.L.A. 769.12. Respondent filed a motion to dismiss, on the grounds that the petition contains claims that have not been exhausted with the state courts. For the reasons stated below, in lieu of dismissing the petition, the Court holds the petition in abeyance and stays the proceedings under the terms outlined below in the opinion to permit petitioner to return to the state courts to exhaust his claims, failing which the petition shall be dismissed without prejudice. The Court will also administratively close the case.

I. Background

Petitioner was convicted following a jury trial in the Crawford County Circuit Court. Petitioner’s conviction was affirmed on direct appeal. People v. Parker, No. 308224, 2013 WL 1689278 (Mich.Ct.App. April 18, 2013); lv. den. 495 Mich. 899, 839 N.W.2d 210 (2013).

Petitioner filed what amounts to a “letter” petition for writ of habeas corpus. Petitioner does not specifically number or delineate his claims, but respondent, in her motion to dismiss, has listed petitioner’s claims as follows:

I. Ineffective assistance of appellate counsel for not requesting that petitioner argue his case in person.
II. Prosecutor presented improper facts.
III. Petitioner did not receive the entire discovery packet, only identifying Dr. Slater’s report and “half” of the witness statements.
IV. Ineffective assistance of trial counsel regarding discussions of speedy trial waiver and plea offer.
V. The trial court denied his motion for a change of venue, and the prosecutor and sheriff contacted the media for state-wide coverage.
VI. The prosecutor dropped three of the first-degree CSC counts in the jury’s presence.
VII. The prosecutor presented pictures of the victim’s bruises and the damage in the house.
VIII. The prosecutor and trial counsel pushed him to give up his right to a speedy trial.
IX. The prosecutor mentioned multiple times that the victim was beat in the head and face, bolstered or vouched for witness credibility, and ...

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