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Parker v. Burt

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

July 10, 2018

AVERY PARKER, Petitioner,
v.
S. L. BURT, Respondent.

          OPINION AND ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [23]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         In 2011, a Michigan jury convicted Avery Parker of, among other crimes, first-degree criminal sexual conduct. Parker is currently serving a lengthy sentence and asks this Court to issue him a writ of habeas corpus. Because five of Parker's six claims are not exhausted and not exhaustible, and because Parker's sixth claim lacks merit, the Court will deny Parker's petition.

         I.

         A.

         In May 2011, Parker, his sister-in-law, and an acquaintance met at a bar. People v. Parker, No. 308224, 2013 WL 1689278, at *1 (Mich. Ct. App. Apr. 18, 2013). After drinks, Parker's sister-in-law went home and went to sleep. Id. Parker eventually went there too, as he was living with his brother and sister-in-law at the time. Id.

         From there the accounts diverge. Parker's sister-in-law testified that Parker was drunk and verbally and sexually assaulted her. Id. After Parker threatened to kill her, she “was able to run out the door, through the woods, and to a neighbor's house where she received assistance.” Id. Parker, on the other hand, testified that his sister-in-law “tried to have sex with him.” Id.

         According to Parker, he “pushed her away, and the victim fell into a heat spacer [sic], a box, and a dresser.” Id. Parker said he then left the home, but his sister-in-law followed. Id.

         A jury convicted Parker of, among other crimes, first-degree criminal sexual conduct. Parker, 2013 WL 1689278, at *1. Parker, who was sentenced as a fourth-habitual offender, received 20 to 40 years in prison for that conviction. Id.

         B.

         Parker appealed, raising numerous claims of error. The Michigan Court of Appeals affirmed Parker's conviction. See Parker, 2013 WL 1689278, at *1.

         Parker then sought leave to appeal from the Michigan Supreme Court. In November 2013, the state high court denied leave “because [it was] not persuaded that the questions presented should be reviewed.” People v. Parker, 839 N.W.2d 210, 210 (Mich. 2013).

         C.

         About a year later, in November 2014, Parker turned to the federal courts for relief. Parker's petition for a writ of habeas corpus was assigned to now-retired Judge Gerald E. Rosen for resolution.

         In June 2015, the Warden moved to dismiss Parker's petition. The Warden pointed out that contrary to Rule 2(c) of the Rules Governing § 2254 Proceedings, Parker's petition was not signed. (PageID.157.) The Warden also argued that Parker's petition contained “numerous, unnumbered claims” that “were not raised in the state courts.” (PageID.158.)

         The next month, Judge Rosen issued an order staying this case. Apparently relying on the Warden's characterization of Parker's claims (the Warden had identified 10 claims in Parker's letter-style petition), Judge Rosen found that “[t]he only claim [in his petition] that [Parker] appeared to raise on his appeal of right before the Michigan Court of Appeals was a portion of his claim involving the failure to obtain discovery.” (PageID.765.) Although dismissing the mixed petition was an option, Judge Rosen was concerned that by the time Parker filed a second habeas corpus petition (asserting the exhausted claims), the one-year period for seeking federal habeas corpus ...


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