Parks v. Warren
Filing
94
OPINION AND ORDER Denying 90 Motion for Reconsideration. Signed by District Judge David M. Lawson. (SPin)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CURTIS PARKS,
Petitioner,
Case Number 05-10036
Honorable David M. Lawson
v.
MILLICENT WARREN,
Respondent.
________________________________________/
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
Petitioner Curtis Parks has filed a motion asking the Court to reconsider its decision
denying his petition for a writ of habeas corpus after his case was remanded by the court of appeals.
Parks argues that the Supreme Court’s decision in Weaver v. Massachusetts, --- U.S. ---, 137 S.
Ct. 1899 (2017), changes the standard of review established by the Sixth Circuit and applied by
this Court for determining if prejudice has been shown to excuse a habeas petitioner’s procedural
default in a case involving structural error. Because Weaver does not compel that conclusion, and
the Sixth Circuit rejected that argument already in another case, this Court will deny the
petitioner’s motion.
Parks was convicted of criminal sexual conduct in Kent County, Michigan in 2001. He
believes his conviction was tainted by the now-well-known “computer glitch” that resulted in the
elimination from jury service of citizens living in a certain zip code. See Ambrose v. Booker, 684
F.3d 638, 640-42 (6th Cir. 2012); Garcia-Dorantes v. Warren, 978 F. Supp. 2d 815, 826-30 (E.D.
Mich. 2013), aff'd, 801 F.3d 584 (6th Cir. 2015). That zip code happened to include a large
minority population, and therefore the petitioner argued that his jury was not drawn from a fair
cross-section of the community.
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Because Parks did not raise his fair cross-section claim in the trial court, this Court was
required to address whether a state procedure barred consideration of the merits of his claim, and,
if so, whether Parks had demonstrated cause for failing to object and prejudice resulting from the
error. See Coleman v. Thompson, 501 U.S. 722, 746-50 (1991). The Court held that Parks
demonstrated cause, and that because the error was deemed “structural,” prejudice was presumed.
However, the Court concluded that Parks’s claim failed on the merits. Parks v. Warren, 773 F.
Supp. 2d 715 (E.D. Mich. 2011), vacated and remanded sub nom Parks v. Klee, 555 F. App’x 573
(6th Cir. 2014) (mem). The Court also held that the petitioner had not established that the
prosecutor had used peremptory challenges to exclude improperly minorities from the jury in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). On appeal by the petitioner, the court of
appeals vacated the decision under the authority of Ambrose, which held that to excuse a
procedural default, actual prejudice must be shown even for structural errors and cannot be
presumed. See Ambrose, 684 F.3d at 649. The court of appeals remanded the case for this Court
to address in the first instance whether Parks had demonstrated actual prejudice to excuse the
procedural default of the fair cross-section claim. The court of appeals also observed that when
ruling on the Batson issue, this Court had overlooked a voir dire transcript that was in the record.
The remand instruction thus also allowed the Court to “consider any arguments Parks may wish to
make” on that issue.
The Court permitted supplemental briefing and considered the petitioner’s challenges
under the Sixth Amendment regarding the racial bias of the defectively selected jury pool, his
claim that the prosecutor improperly used peremptory challenges to exclude minority jurors, and
his claim that trial counsel was ineffective by failing to object to the panel based on the purported
Batson violation. In an opinion and order issued on September 28, 2017, the Court held that the
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petitioner had not shown actual prejudice to excuse the procedural default of his fair cross-section
claim and he did not show either cause or prejudice to excuse the default of his Batson claim. The
Court also held that the Strickland claim was without merit because it was premised on the failure
to raise a Batson challenge, but trial counsel could not be faulted for failing to make that objection
when there was no evidence in the record of the jury selection that could support a valid inference
of purposeful discrimination. The Court therefore denied the petition.
Parks now contends that the Court must take another look at the issue in light of Weaver v.
Massachusetts. In that case, the Supreme Court considered the requirement of showing prejudice
in a slightly different context: when a defendant alleging ineffective assistance of counsel contends
that his lawyer performed deficiently by failing to contest a structural error. In Weaver, the
defendant was convicted of murder after a trial in which the courtroom was closed to the public
during part of the jury selection. His lawyer did not object to the closure, which Weaver contended
violated his right to a public trial under the Sixth Amendment. And Weaver argued that his
lawyer’s failure to object or raise the issue on direct review amounted to ineffective assistance of
counsel. The Supreme Court acknowledged that the constitutional violation resulting from the
courtroom closure would be considered a structural error if raised on direct review, automatically
entitling the defendant to a new trial. Weaver, 137 S. Ct. at 1905. But a defendant alleging
ineffective assistance of counsel must show both deficient performance and prejudice. Id. at 1910
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Supreme Court was unwilling
to relax that standard by presuming prejudice, even when the deficient performance impacted a
procedural right that was deemed structural. Id. at 1912.
The Weaver court explained that the term “structural error” “means only that the
government is not entitled to deprive the defendant of a new trial by showing that the error was
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‘harmless beyond a reasonable doubt.’” Id. at 1910. Automatic reversal results when a structural
error is established in direct review. Ibid. That is not so, however, when the error emerges as part
of an ineffective-assistance-of-counsel claim, where prejudice must be shown. Ibid. But prejudice
can be “defined in different ways depending on the context in which it appears.” Ibid. The Court
explained:
In the ordinary Strickland case, prejudice means “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” But the Strickland Court cautioned that the prejudice inquiry is not
meant to be applied in a “mechanical” fashion. For when a court is evaluating an
ineffective-assistance claim, the ultimate inquiry must concentrate on “the
fundamental fairness of the proceeding.” Petitioner therefore argues that under a
proper interpretation of Strickland, even if there is no showing of a reasonable
probability of a different outcome, relief still must be granted if the convicted
person shows that attorney errors rendered the trial fundamentally unfair.
Id. at 1910-11. Accepting the defendant’s proposition for the moment, the Court nonetheless
declared, “Strickland prejudice is not shown automatically. Instead, the burden is on the defendant
to show either a reasonable probability of a different outcome in his or her case or, as the Court
has assumed for these purposes, to show that the particular . . . violation was so serious as to render
his or her trial fundamentally unfair.” Id. at 1911.
Parks argues that this restatement of the prejudice concept should alter the showing he must
make to excuse a procedural default. But that conclusion cannot be teased from Weaver’s
language. As the Weaver Court noted, “the term ‘structural error’ carries with it no talismanic
significance as a doctrinal matter”; it means only that harmless error will not excuse a violation.
Id. at 1910. Therefore, whether the error is classified as “structural” does not dictate whether the
petitioner must show prejudice to excuse the failure to preserve the issue; it merely determines
whether direct review of the error is subject to analysis for harmless error. And in Ambrose v.
Booker, the Sixth Circuit held that a habeas petitioner must show “actual prejudice to excuse [his]
procedural default, even if the error is structural.” 684 F. 3d at 649.
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The Court is somewhat puzzled about why the petitioner filed this motion because, before
it was filed, the Sixth Circuit addressed the same arguments raised here by him, when it denied a
certificate of appealability to the petitioner in Carter v. Lafler, No. 17-1409, 2017 WL 4535932
(6th Cir. Aug. 30, 2017). As the court of appeals explained:
Reasonable jurists [would] not debate whether the district court was correct in
denying Carter’s motion to alter or amend the judgment. In that motion, Carter
sought a COA on the issue of whether “prejudice should be presumed in cases
involving underlying structural error.” However, as the district court correctly
observed, this court had already decided that issue, requiring Carter to show “actual
prejudice to excuse [his] procedural default, even if the error is structural.” Ambrose
v. Booker, 684 F.3d 638, 649 (6th Cir. 2012). Carter based his request on the
Supreme Court’s grant of certiorari in the case of Weaver v. Massachusetts, 137 S.
Ct. 1899 (2017). The Supreme Court has since decided Weaver, and the holding of
Weaver is unavailing for Carter. See Weaver, 137 S. Ct. at 1913-14 (holding that
prejudice is not presumed in cases involving claims of ineffective assistance of
counsel that result in structural error). Accordingly, reasonable jurists would not
debate whether the district court was correct in its procedural reasoning.
2017 WL 4535932, at *3, reh’g denied (Oct. 26, 2017), cert. denied, 138 S. Ct. 2582 (2018).
Although Carter was an unpublished decision, it squarely addressed and rejected the same position
advanced by the petitioner here where he contends that Weaver abrogated the rule laid down in
Ambrose and requires that the Court presume prejudice on collateral review of any claim
implicating “structural error.”
Also of note, in a footnote to his motion the petitioner alluded to a parallel appeal to the
Sixth Circuit raising the same issue, by another Michigan prisoner, Eric Powell. However, that
appeal was voluntarily dismissed in January 2018, for reasons that are not apparent from the
record. Powell v. Howes, No. 16-2410, 2018 WL 1755849 (6th Cir. Jan. 23, 2018). In any event,
the Court has not located any decision calling into question the viability of the holding in Ambrose
after Weaver, and in the only authoritative ruling on point, the Sixth Circuit rejected the same
arguments advanced by the petitioner in his pending motion.
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Motions for reconsideration may be granted under E.D. Mich. LR 7.1(h)(1) when the
moving party 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(h)(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). The
petitioner has not made the required showing.
Accordingly, it is ORDERED that the motion for reconsideration [R. 90] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: September 19, 2018
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 September 19,
2018.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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