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Brown v. Jackson

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

July 25, 2017

ANTHONY BROWN, Petitioner,
v.
SHANE JACKSON, Respondent.

          OPINION

          Paul L. Maloney United States District Judge.

         This is a habeas corpus action brought by a state prisoner pursuant to 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 the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations

         Petitioner Anthony Brown presently is incarcerated at the Carson City Correctional Facility. Petitioner pleaded guilty in the Chippewa County Circuit Court to assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84. On July 21, 2009, the court sentenced him to a prison term of three years and seven months to ten years.

         Petitioner was released on parole in early 2016. On June 29, 2016, Petitioner was charged with three parole violations:

Count 1, violation of condition 04: On or about June 20, 2016 you engaged in behaviour that was assaultive, abusive, threatening and/or intimidating by harassing/threatening Monika Rejman using a telecommunications device
Count 2, violation of condition 04: On or about June 28, 2016 you engaged in behavior that was assaultive, abusive, threatening and/or intimidating by using verbally abusive language towards Pontiac Parole Officer Milam J. Brooks.
Count 3, violation of condition 04, On or about June 28, 2016 you engaged in behavior that was assaultive, abusive, threatening and/or intimidating by using verbally abusive language towards Pontiac Parole Officer Daniel Nash.

(Prelim. Parole Violation Hr'g Report, ECF No. 1-1, PageID.22.) A preliminary parole violation hearing was held on July 5, 2016, at which Petitioner and his parole agent, Milam Brooks, were present. Agent Brooks testified at the hearing, and the examiner played recordings of telephone messages left for the victim, Monika Rejman, by Petitioner. At the end of the hearing, the hearing officer found probable cause to believe that Petitioner had committed the violations. (Id., PageID.22-23.)

         The parole board subsequently conducted the formal parole hearing. Before the hearing, Petitioner agreed to plead guilty to Count 2, and Parole Specialist Michelle Risley moved to dismiss Count 3 for cause. At the hearing on Count 1, both Rejman and Petitioner testified, as did Oakland County Detective James Zoedak. In addition, Petitioner's voice mails, texts, and facebook posts were admitted into evidence. Petitioner defended himself on the ground the Rejman caused Petitioner to be discharged from his job, because Petitioner had refused Rejman's request for oral sex. The hearing officer found Petitioner guilty of the first count, making the following findings:

To prove count 1, the State must show that the parolee engaged in assaultive, abusive, threatening, or intimidating behavior. It is undisputed that the parolee left both voicemail messages for Monika after he was terminated from his employment. His tone during the calls is extremely aggressive. He calls Monika a “stinky slut, ugly ass, crater face bitch, bumpy face, foreign ass ugly fucking bed bu[g] bringing into this country foreign ass bitch.” During the second call, he tells her he is going to “fuck up your family just like you fucked up mine.” The only reasonable conclusion to draw from the parolee's vulgar, indecent, and offensive word choice is that he intended to frighten, intimidate, and harass Monika.
I considered the parolee's defense and attributed it no weight. His main claim - that Monika had him fired from his job to get back at him because he declined her offer to perform oral sex on him - lacks any record support. After listening to the testimony and observing the demeanor of all parties, the examiner only concludes that Monika has absolutely zero sexual interest in the parolee. She would not have offered to perform oral sex on him, and if she had, the parolee would have hastily accepted. While his account provides loads of comic relief, it fails for plausibility.
It should also be noted that even assuming the parolee was being truthful, a stretch that almost hinges on absurdity, he does not establish any justification for the harassing, threatening, and intimidating voicemails that he left on Monika's phone. Retribution for losing his employment is not a defense.
I find that the parolee left both voicemails on Monika's phone. He lodged many offensive remarks toward her and threatened to fuck up her family. His tone and word choice comfortably fits beneath the umbrella of ...

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