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Olrich v. Gidley

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

April 23, 2018

TROY OLRICH, Petitioner,
v.
LORI GIDLEY, Warden, Respondent.

          OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS [1]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         In 2013, Troy Olrich was sentenced to five years' probation, which included spending a year in a local Michigan prison. While Olrich was still in prison, an on-again-off-again friend asked Olrich to stop contacting her. Yet Olrich called her 60 times. A state trial judge found that this conduct violated a Michigan stalking statute which, in turn, violated a condition of Olrich's probation. Thus, Olrich was resentenced to at least three and at most seven-and-a-half years in prison.

         Olrich now seeks a writ of habeas corpus from this federal court. His only claim is that insufficient evidence supports the state trial court's finding that he violated the stalking statute (which is the sole basis for his probation violation). As will be explained, the only time Olrich presented this claim to the state courts was in a motion for peremptory reversal filed in the Michigan Supreme Court. The state high court denied the motion but did not say if that was because the motion was procedurally improper or because it lacked merit. The former possibility leads to a procedural-default analysis, the latter a merits one. As it turns out, both analyses lead to the same place: the denial of Olrich's petition.

         I.

         A.

         On June 13, 2013, Olrich was “placed on five years' probation” for aggravated stalking and third-degree home invasion. (R. 7, PID 119-20.) As part of this sentence, he received 60 days in prison on the stalking charge and 10 months in prison on the home invasion charge. As a further condition of his probation, Olrich was not to violate any Michigan law. (R. 7, PID 179- 80.)

         In September 2013, Olrich, while still in prison, was arraigned on two counts of violating his probation. In the count that is relevant here, Olrich was accused of violating a stalking statute, Michigan Compiled Laws § 750.411h to be precise, by repeatedly contacting Katherine McMahan from prison. (See R. 7, PID 131, 175.) Section 750.411h prohibits “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel [that way].”

         Some of the evidence introduced at the probation-violation hearing indicated that Olrich had violated § 750.411h. In particular, McMahan testified that while she had visited Olrich in jail from the end of 2012 through April 2013 (R. 7, PID 204-05), sometime around April 2013, she sent Olrich a postcard stating that he did not need to contact her anymore (R. 7, PID 205-06, 212). McMahan also verbally told Olrich not to contact her anymore, although the precise timing of that communication is unclear. (R. 7, PID 206.) But Olrich persisted: after being placed on probation on June 13, 2013, he called McMahan 60 times. (R. 7, PID 189.) McMahan recalled being “very aggravated that he continued to call.” (R. 7, PID 207.) And in August 2013, McMahan received two postcards from Olrich; one said, “love you bunches, ” the other, “together forever.” (R. 7, PID 220.) Shortly thereafter, Mc Mahan obtained a personal-protection order. (R. 7, PID 200.) She testified, “I have a son at home and it was very, very upsetting to him and I was-I was trying to prevent when Troy was released a personal face to face confrontation. Most of all I was-I had made it clear that I was finished with any type of friendship and he continued to attempt to contact me.” (R. 7, PID 202.)

         Other evidence introduced at Olrich's probation-violation hearing cut the other way. In particular, McMahan testified that there were prior occasions in their six-year friendship where she had asked Olrich not to contact her anymore but, after Olrich persisted, the friendship would resume. (R. 7, PID 211.) McMahan also admitted that she ordered Olrich items from the prison commissary even after she had told him to stop contacting her. (R. 7, PID 212-13.) (Apparently, McMahan had taken on this responsibility because Olrich's wife had a disability that made it hard for her to use the internet. (R. 7, PID 217-18.)) Further, the evidence suggested that there were only two times when McMahan and Olrich talked on the phone after she asked him to stop contacting her-and both were before he was placed on probation. (R. 7, PID 214.) McMahan also testified that she never would have sought the protective order had she known that it would expose Olrich to further punishment. (R. 7, PID 219.)

         In the end, the state trial judge found that, more likely than not, Olrich had violated § 750.411h. The judge explained in part, “Now the defendant was told in April [2013] by Ms. McMahan not to contact her and he continued. I mean the telephone log is really quite ridiculous when you look at the number of contacts that he attempted to make, they're obsessive. . . . [T]he cards, in early August[, ] bolster the concern that Ms. McMahan would have. In fact she went out and got a PPO, she was concerned.” (R. 7, PID 238.)

         In October 2013, Olrich was sentenced for his probation violation. The state trial judge gave Olrich a minimum of three and a maximum of seven-and-half years in prison for each underlying conviction, with the two sentences to run concurrent. (R. 7, PID 308-09.)

         B.

         In November 2014, Olrich filed a delayed application for leave to appeal with the Michigan Court of Appeals. In that application, Olrich did not challenge his probation violation. The Michigan Court of Appeals denied Olrich's delayed application. (R. 7, PID 366.)

         Olrich then sought relief from the Michigan Supreme Court. In his application for leave to appeal, Olrich again did not challenge his probation violation. But via a motion for peremptory reversal, Olrich requested that the Michigan Supreme Court “peremptorily reverse his probation violation conviction due to insufficient evidence.” (R. 7, PID 1009.)

         The Michigan Supreme Court did not grant Olrich the relief he requested. Regarding Olrich's application for leave to appeal, the Michigan Supreme Court denied leave without prejudice to Olrich filing a motion for relief from judgment in the state trial court. See People v. Olrich, 869 N.W.2d 617 (Mich. 2015). As for Olrich's motion for peremptory reversal, i.e., the one challenging his probation violation, the Michigan Supreme Court said only this: “The motion for peremptory reversal . . . [is] DENIED.” Id.

         Olrich later filed a motion for new trial in the state trial court-but that motion also did not assert that evidence was not sufficient to establish a probation violation. (See R. 7, PID 347- 61.) The state trial court, construing the ...


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