Parks v. Warren
Filing
74
ORDER granting in part and denying in part 64 Motion for Reconsideration and Granting Certificate of Appealability. Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CURTIS PARKS,
Petitioner,
Case Number 05-10036
Honorable David M. Lawson
Magistrate Judge Charles E. Binder
v.
MILLICENT WARREN,
Respondent.
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ORDER GRANTING IN PART PETITIONER’S MOTION FOR RECONSIDERATION
AND GRANTING CERTIFICATE OF APPEALABILITY
The matter is before the Court on the petitioner’s motion for reconsideration of the Court’s
February 28, 2011 opinion and order rejecting magistrate judge’s report and recommendation,
overruling respondent’s objections, and denying petition for writ of habeas corpus, and the July 31,
2008 opinion and order adopting in part and rejecting in part magistrate judge’s report and
recommendation, denying in part petition for writ of habeas corpus, and referring matter to
magistrate judge for appointment of counsel and an evidentiary hearing on remaining habeas claim.
I.
Petitioner Curtis Parks filed a petition for writ of habeas corpus challenging his convictions
of three counts of first-degree criminal sexual conduct in the Kent County, Michigan circuit court
in October 2001. The petition raised four issues for resolution: minorities were systematically
excluded from the jury array, which resulted in the denial of a fair cross-section of the community
on the petitioner’s trial jury; the state prosecutor abused the jury selection process by using his
peremptory challenges to exclude African Americans from the jury in violation of Batson v.
Kentucky, 476 U.S. 79 (1986); the petitioner’s trial counsel was ineffective for failing to mount a
timely objection to the prosecutor’s conduct; and the petitioner was denied a fair trial when the state
court allowed the prosecutor to introduce a mug shot in evidence. On July 31, 2008, the Court
denied relief on the petitioner’s mug shot and Batson claims, finding that admission of the mug shot
in evidence was not fundamentally unfair and that the petitioner’s Batson claim was procedurally
defaulted because the petitioner had failed to establish that his counsel was ineffective, thereby
removing any grounds to excuse the procedural default. However, the Court found that an
evidentiary hearing was required to resolve the jury venire claim and appointed counsel for the
petitioner.
Magistrate Judge Charles E. Binder conducted an evidentiary hearing on October 26, 2009
and issued a Report and Recommendation on January 15, 2010. Judge Binder suggested that the
Court find that the petitioner had established a prima facie case of underrepresentation in violation
of the Sixth Amendment’s fair cross-section requirement. On February 28, 2011, the Court found
that African-Americans were systematically excluded from Kent County juries for several months,
but denied habeas relief on the petitioner’s jury venire claim because the record established that the
racial composition of the petitioner’s jury venire reflected almost exactly the proportion of AfricanAmericans in the community.
II.
The petitioner asks the Court to reconsider its denial of the habeas petition as to the jury
venire claim and the Batson claim on three grounds: (1) the Court failed to consider that the
systematic exclusion of minorities included Hispanics, not only African-Americans; (2) the Court
is under the mistaken impression that the petitioner’s 45-person jury venire was selected at random
from the larger jury pool; and (3) the magistrate judge misunderstood the record as to the petitioner’s
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Batson claim. The petitioner requests that the Court issue the writ or grant an additional certificate
of appealability
Motions for reconsideration may be granted pursuant to E.D. Mich. LR 7.1(g)(1) when the
moving party to shows (1) a “palpable defect,” (2) that misled the court and the parties, and (3) that
correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(g)(3). A
“palpable defect” is a defect which is obvious, clear, unmistakable, manifest, or plain. Mich. Dep’t
of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D. Mich. 2002) (citations omitted). However,
motions for reconsideration should not be granted when they “merely present the same issues ruled
upon by the court, either expressly or by reasonable implication.” E.D. Mich. LR 7.1(g)(3).
A.
The petitioner’s claim that Hispanics were excluded from Kent County jury pools comes too
late. Although the Court does not question the petitioner’s proposition that Hispanics are a
distinctive group for the purposes of assessing violations of the Sixth Amendment, United States v.
Jackman, 46 F.3d 1240, 1246 (2d Cir. 1995), the Court considers the petitioner’s claim that
Hispanics were underrepresented in the jury venire as a separate and distinct claim which has not
been exhausted. See United States v. Booker, 367 F. App’x 571, 574 (6th Cir. 2007) (“To establish
a prima facie violation of the fair-cross-section right, [the petitioner] ‘must show (1) that the group
alleged to be excluded is a “distinctive” group in the community . . . .’” (quoting Duren v. Missouri,
439 U.S. 357, 364 (1979))); Gray v. Brady, 592 F.3d 296, 306 (1st Cir. 2010) (holding that
“minorities” did not constitute a cognizable group for the purposes of a Batson claim). Even
assuming, arguendo, that the petitioner had exhausted that claim, he did not raise it in his habeas
petition or present any evidence concerning the underrepresentation of Hispanics during the
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extensive evidentiary hearing held before the magistrate judge. Therefore, the Court will not
reconsider its earlier decision on this ground.
B.
The petitioner argues that the Court also should reconsider its decision to deny his Duren fair
cross-section claim because the Court was led to believe mistakenly that the jury venire selection
was random, when in fact Gail VanTimmeren may have manipulated the venire to increase AfricanAmerican representation. The Court will not reconsider its decision on this ground for two reasons.
First, the petitioner has not offered sufficient evidence to convince the Court that the jury
venire was manipulated in his case. VanTimmeren’s deposition indicates that she only manipulated
the venire selection process when the underrepresentation was blatant. She stated: “It wasn’t
something that you would do once every two months or three months or four months. It’s just when
it was blatant.” Mot. for Reconsideration, Ex.1, VanTimmeren’s Dep. at 22. VanTimmeren’s trial
testimony does nothing to elucidate whether Parks’s jury venire was manipulated.
Second, even if VanTimmeren had manipulated the random selection process to insure that
Parks’s jury venire contained a fair cross-section of the community with respect to AfricanAmerican minorities, the Court would not have decided the issue differently. The petitioner is
entitled to a “jury drawn from venires representative of the community.” Duren, 439 U.S. at 364
(“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant
must show . . . that the representation of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in the community . . . .”); Taylor v.
Louisiana, 419 U.S. 522, 526 (1975) (“Our inquiry is whether the presence of a fair cross section
of the community on venires, panels, o[r] lists from which petit juries are drawn is essential to the
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fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions.”);
United States v. Allen, 160 F.3d 1096, 1103 (6th Cir. 1998) (“The Sixth Amendment requires that
the jury venire from which a jury is selected represent a fair cross-section of the community.”
(internal quotations omitted))). The petitioner’s jury venire contained a fair representation of
African-Americans; therefore, he cannot establish a violation of the Sixth Amendment. To the
extent that VanTimmeren’s actions may give rise to a cognizable equal protection claim, the
petitioner has expressly disavowed any intention of pursuing such a claim.
C.
The petitioner concedes that, although the magistrate judge neglected to address the
petitioner’s argument that his trial counsel’s ineffective assistance constituted the cause necessary
to excuse a procedural default, the Court was not influenced by the omission. Nonetheless, the
petitioner asks the Court to issue an additional certificate of appealability for his Batson claim.
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
The petitioner argued that his trial counsel’s ineffectiveness served as cause to excuse his
failure to contemporaneously object to the prosecutor’s peremptory challenges. The petitioner
submitted the affidavits of three African-Americans who were peremptorily excused by the
prosecutor. The Court held that the affidavits alone were not enough to establish that his counsel
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was deficient. The Court finds that reasonable jurists could debate whether the Court was correct
in ruling that the petitioner could not show cause and prejudice to excuse the procedural default.
The Court also finds that reasonable jurists could debate whether the petition states a valid Batson
claim. The record suggests that the prosecutor excused every African-American from the jury
without providing any justification. Therefore, the Court will grant an additional certificate of
appealability with respect to the petitioner’s Batson claim.
III.
The petitioner has not offered evidence of a “palpable defect” that misled the court, which
would result in a different disposition of the case if corrected. However, the Court will grant an
additional certificate of appealability with respect to the petitioner’s Batson claim.
Accordingly, it is ORDERED that the petitioner’s motion for reconsideration [dkt #67] is
GRANTED IN PART.
It is further ORDERED that the petitioner is granted an additional certificate of appealability
with respect to his Batson claim.
It is further ORDERED that the remaining requests for relief in the petitioner’s motion for
reconsideration are DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 21, 2011
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 21, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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