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Parrish v. Campbell

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

October 11, 2016

MARK ANDREW PARRISH, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION

          ROBERT HOLMES BELL DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that Petitioner has failed to exhaust his available state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period for filing a habeas petition, the Court will stay the petition and hold it in abeyance pending his exhaustion of the currently unexhausted claims.

         Discussion

         I. Factual allegations

         Following a jury trial in the Wexford County Circuit Court, Petitioner was convicted of seven counts of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b, and one count of second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws § 750.520c. On May 28, 2014, Petitioner was sentenced as a fourth-offense felony offender, Mich. Comp. Laws § 769.12, to seven terms of imprisonment of 30 to 60 years on the CSC I convictions and one term of 10 to 30 years on the CSC II conviction.

         Petitioner appealed his convictions to the Michigan Court of Appeals, raising the following two claims:

I. [PETITIONER] WAS DENIED HIS STATE AND FEDERAL CONFRONTATION RIGHTS WHEN THE TRIAL COURT SUA SPONTE DETERMINED THAT BETH'S STATEMENTS RECANTING HER ALLEGATIONS TO HER GUARDIAN AD LITEM WERE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AND WERE THEREFORE INADMISSIBLE AT TRIAL. THIS ERROR WAS EXACERBATED BY THE PROSECUTOR'S MISCONDUCT, WHICH VIOLATED [PETITIONER'S] STATE AND FEDERAL DUE PROCESS RIGHTS. [PETITIONER] WAS PREJUDICED BY THESE ERRORS AND SO HIS CONVICTIONS MUST BE VACATED. TO THE EXTENT DEFENSE COUNSEL FAILED TO ADEQUATELY RESPOND TO THE TRIAL COURT'S RULING AND TO OBJECT TO THE PROSECUTOR'S MISCONDUCT, HIS PERFORMANCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, ALSO ENTITLING [PETITIONER] TO A NEW TRIAL.
II. [PETITIONER] WAS DENIED HIS STATE AND FEDERAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO SEEK ADMISSION OF A FORENSIC INTERVIEW TRANSCRIPT SHOWING THAT BETH RECANTED ON MULTIPLE OCCASIONS TO SEVERAL DIFFERENT PEOPLE OR TO OTHERWISE USE INFORMATION CONTAINED IN THE TRANSCRIPT TO IMPEACH BETH'S TESTIMONY.

(Pet., ECF No. 1, PageID.3.) The court of appeals granted Petitioner's motion to remand for an evidentiary hearing. Following remand, in an unpublished opinion issued on November 25, 2016, the court of appeals denied all appellate grounds and affirmed the convictions. Petitioner raised the same two grounds to the Michigan Supreme Court, which denied leave to appeal on June 30, 2015.

         According to the habeas application, Petitioner mailed a motion for relief from judgment to the Wexford County Circuit Court on September 1, 2016, raising the following four issues:

I. [PETITIONER] WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS LAWYER FAILED TO (A) STRIKE JURORS WHO WERE IMPARTIAL, (B) PRESENT EVIDENCE SUPPORTING HIS STRATEGICALLY CHOSEN DEFENSE, (C) CONDUCT A PROPER INVESTIGATION BY CONSULTING THE AVAILABLE LITERATURE OR AN EXPERT WITNESS WHICH CAUSED HIM TO ELICIT DAMAGING TESTIMONY FROM EXPERT WITNESS ON CROSS-EXAMINATION AND ALSO LED TO HIS FAILURE TO USE THE AVAILABLE LITERATURE, EXPERT WITNESS TESTIMONY, AND (D) DO ALL OF THE ABOVE WHICH, WHEN CONSIDERED CUMULATIVELY, PREJUDICED [PETITIONER].
II. [PETITIONER] IS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
III. [PETITIONER] WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHEN THE PROSECUTOR SUPPRESSED EVIDENCE.
IV. [PETITIONER] WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHERE ARGUMENTS I, II, AND III WERE NOT RAISED ON DIRECT APPEAL ESTABLISHING THE ...

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