United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND
(3) DENYING PERMISSION TO FILE APPEAL IN FORMA
D. BORMAN UNITED STATES DISTRICT JUDGE.
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Jason Parks was convicted after a
jury trial in the Oakland County Circuit Court of armed
robbery, Mich. Comp. Laws § 750.529, and first-degree
home invasion. Mich. Comp. Laws § 750.110a(2).
Petitioner was sentenced as a fourth time habitual felony
offender to 25 to 60 years for the armed robbery and 15 to 50
years for the home invasion.
petition raises three claims: (1) Petitioner's double
jeopardy rights were violated when he was retried after the
prosecutor's misconduct caused his first trial to end in
a mistrial, (2) Petitioner's trial was rendered
fundamentally unfair by the erroneous introduction of
evidence that police responded to his residence on a report
of “family trouble” and recovered a machete, and
(3) Petitioner was denied the effective assistance of counsel
when his attorney failed to ensure a photograph of him taken
from the Michigan Department of Corrections website was
sufficiently cropped to eliminate any indication of its
Court finds that Petitioner's claims are without merit.
Therefore, the petition will be denied. The Court will also
deny Petitioner a certificate of appealability, and it will
deny him leave to appeal in forma pauperis.
charges against Petitioner arose out of an incident occurring
in the City of Pontiac on the night of December 10, 2012,
when a man armed with a machete forced his way into an
occupied residence and stole money from a bedroom.
first trial ended in a mistrial during the testimony of the
first witness, Tessa Coulter, who was at the residence during
the robbery. Coulter testified that she learned the identity
of the perpetrator through members of his family. Dkt. 11-5,
5/20/13 Jury Trial Tr. at 128. The prosecutor asked which
members of the family Coulter knew, and she replied that she
knew the whole family, but then she added, “[b]esides
Jason, cause he was in and out of prison.” Id.
at 129. Coulter also testified that April Duncan, her sister,
showed her a photograph of Petitioner from the Michigan
Department of Corrections website. Id. at 129-30.
The prosecutor then directed Coulter, “hang on.
Let's move on.” Id. at 130.
point in the proceedings, defense counsel asked to approach
the bench, and the jury was sent out of the courtroom.
Id. at 131. Defense counsel then moved for a
mistrial based on Coulter's reference to Petitioner being
in and out of prison, and to her testimony that the photo was
from the Michigan Department of Corrections website.
Id. at 131-32. The prosecutor stated that he did not
intend to elicit that testimony, and that Coulter
“expand[ed] on things.” Id. at 132.
trial court found that the prosecutor was not at fault, and
the testimony was unexpected. Id. at 133. The court
also found that the testimony was highly prejudicial and
could not be cured by a jury instruction. Id. at
132-33. The court granted the motion for a mistrial.
Id. at 133.
counsel argued that retrial should be precluded under double
jeopardy principles because the prejudicial testimony
resulted from the misconduct of the prosecutor. Id.
at 135-36. The trial court found that a retrial was
permissible because the prejudicial testimony had not been
intentionally presented. Id. at 136-37. The trial
[T]here was no intentional action on the part of the
prosecutor in this matter. I was able to view him when he was
questioning the witness and - and view her and her
credibility, and I believe these were just voluntary
statements, uh, that she made, and the prosecutor had no idea
that those statements regarding Defendant's, um, being in
prison in the past, I - I don't believe the prosecutor
had any idea she was gonna say anything like that. Um, so I
find it was innocent and, at worst, maybe possibly negligent,
but I - I think it was purely innocent.
Id. at 137.
Petitioner's retrial, April Duncan testified that she
lived with her two children in a house in the City of
Pontiac. Duncan's sister, Coulter, was a frequent
overnight guest. Dkt. 11-7, 5/22/13 Jury Trial Tr. at 80. On
the evening of December 10, 2012, Coulter was at Duncan's
house to babysit. Id. at 9, 13. Coulter and the kids
were watching television when she heard a knock on the
sliding glass door. Id. at 9-11. Coulter walked over
to the door and saw Petitioner standing outside. Id.
at 12-14. Duncan's daughter, Merissa Logan, also
identified Petitioner as the man who was standing at the
window. Id. at 106.
opened the door, and Petitioner asked for April. Id.
at 13. Coulter said April was not at home. Id.
Petitioner identified himself as “Eric” and said
that Duncan had invited him over. Id. at 13, 17.
Duncan testified that she knew Petitioner, but she had not
invited him to her house. Id. at 81, 101-02.
then lifted his shirt and grabbed a handle sticking out of
his waistband. Id. at 15-16. Coulter tried to slide
the door closed, but Petitioner pushed it open and came
inside the house. Id. at 16-17, 53. Petitioner
grabbed Coulter's arm and pulled out a machete.
Id. at 17-23. Petitioner held the machete up to
Coulter's chin and told her to give him her money.
Id. at 16-18, 58. Coulter dropped to the floor.
Id. at 18.
stepped over Coulter and went into April's bedroom.
Id. at 19. Coulter got up and ran to a
neighbor's house for help. Id. at 19. Coulter
and the neighbor, who armed himself with a gun, went back to
the house, but Petitioner was gone. Id. at 19-20.
Coulter then called 9-1-1. Id. at 21.
Duncan testified that she kept her cash in the nightstand in
her bedroom, and it was missing when she returned home.
Id. at 32-34, 82-84. The nightstand drawer was open.
Id. at 61.
next day Deputy Chris Miracle responded to a report of
“family trouble” at another house in Pontiac.
Id. at 74-75. Petitioner's name had been
mentioned in the report, but he was not at the residence when
Miracle arrived. Id. at 75. Miracle found a two-foot
long machete on the porch. Id. at 75. Coulter
identified it as the machete used by Petitioner during the
robbery. Id. at 23-24.
or two after the robbery Coulter received a phone call from
her friend, Ashley Smith. Id. at 25. Smith told her
information about the robbery, and Coulter then relayed that
information to Duncan. Id. at 25-26. Duncan later
showed Coulter a photo of ...