Parks v. Haas

Filing 14

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Denying Permission to File Appeal in Forma Pauperis. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JASON PARKS,

Petitioner,

Case No. 2:16-cv-11702
Hon. Paul D. Borman

v.
TONY TRIERWEILER,1
Respondent.
___________________________________/
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 PAUPERIS
This is 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.
The 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

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Petitioner has been transferred to the Bellamy Creek Correctional Facility, where Tony
Trierweiler is the warden. The only proper respondent in a habeas case is the habeas
petitioner’s custodian, which in the case of an incarcerated habeas petitioner is the warden
of the facility where the petitioner is incarcerated. See Edwards v. Johns, 450 F. Supp. 2d
755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 U.S.C. § 2254. Therefore, the Court
substitutes Warden Tony Trierweiler in the caption.

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 source.
The 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.
I. Background
The 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.
Petitioner’s 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
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move on.” Id. at 130.
At that 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.
The 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.
Defense 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 court
explained:
[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.

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Id. at 137.
At 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.
Coulter 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.
Petitioner 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.
Petitioner 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.
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Coulter then called 9-1-1. Id. at 21.
April 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.
The 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.
A day 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
Petitioner, and the photograph was admitted at trial as an exhibit. Id. at 27, 84.
Based on this evidence, the jury found Petitioner guilty of the offenses indicated
above.
Following sentencing, Petitioner filed a claim of appeal in the Michigan Court of
Appeals. His appellate counsel filed a brief on appeal, raising the same three claims he
raises in his habeas petition. The Michigan Court of Appeals rejected the claims and
affirmed Petitioner’s convictions in an unpublished opinion. People v. Parks, No. 317191,
2014 WL 6713481 (Mich. Ct. App. Nov. 25, 2014).
Petitioner subsequently filed an application for leave to appeal in the Michigan
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Supreme Court, raising the same claims that he raised in the Michigan Court of Appeals.
The Michigan Supreme Court denied the application by standard order. People v. Parks,
868 N.W.2d 619 (Mich. 2015) (Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section unless the state court adjudication
was “contrary to” or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529
U.S. at 413).
“A state court’s determination that a claim lacks merit precludes federal habeas
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relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). “Section 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal. . . . As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation marks and
citation omitted).
III. Analysis
A. Double Jeopardy
Petitioner’s first claim asserts that his retrial was barred by the Double Jeopardy
Clause of the Fifth Amendment because the deliberate misconduct of the prosecutor
caused his first trial to end in a mistrial.
The Double Jeopardy Clause, which is “applicable to the States through the
Fourteenth Amendment,” Lockhart v. Nelson, 488 U.S. 33, 38 (1988), states that “[n]o
person shall be . . . subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Jeopardy attaches in a criminal trial once the jury is
impaneled and sworn. See, e.g., Crist v. Bretz, 437 U.S. 28, 38 (1978). Among other
things, the Double Jeopardy Clause protects a defendant’s right to have his or her trial
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completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503-04 (1978).
When a criminal proceeding is terminated prior to a resolution on the merits, retrial
before a different jury is not automatically barred. Retrial may proceed if the defendant
requests or consents to a mistrial or if there is a “manifest necessity” for the mistrial.
Arizona, 434 U.S. at 505; Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996).
An exception to the rule permitting a retrial after a defendant moves or consents to
a mistrial applies where governmental action is intended to provoke the defendant to
request a mistrial and thereby subject him to the burden imposed by multiple
prosecutions. United States v. Dinitz, 424 U.S. 600, 611 (1976). In other words, “the
circumstances under which . . . a defendant may invoke the bar of double jeopardy in a
second effort to try him are limited to those cases in which the conduct giving rise to the
successful motion for a mistrial was intended to provoke the defendant into moving for a
mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679 (1982).
Here, after reciting the applicable constitutional standard, the Michigan Court of
Appeals rejected Petitioner’s first claim on the merits as follows:
In this case, the trial court properly concluded that the prosecutor did
not engage in conduct intended to provoke a mistrial. The prosecutor’s line of
questioning was designed to show how defendant became a suspect in this
case. The victim’s statement that she did not know defendant because “he was
in and out of prison” was not made in response to any question posed by the
prosecutor. And after the victim testified that a picture she saw of defendant
was “off of the Michigan Department of Corrections web site,” the prosecutor
immediately interrupted this non-responsive testimony. Further, there is no
evidence of a possible motive to provoke a mistrial on the first day of trial
during the examination of the first witness. Under these circumstances, the
trial court did not clearly err in finding that the prosecutor did not engage in
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conduct intended to provoke or ‘goad’ the mistrial request.
Parks, 2014 WL 6713481, at *2.
This decision did not constitute an unreasonable application of the clearly
established Supreme Court standard. This is not a case where the trial was going poorly
for the prosecution so it sought to scuttle it through deliberate misconduct resulting in a
mistrial motion. Rather, the incident occurred during the direct examination of the
prosecutor’s first witness. After the witness’s unsolicited remark about Petitioner being in
and out of jail and Petitioner’s photograph being taken from the Michigan Department of
Corrections website, the prosecutor told the witness to “move on.” Dkt. 11-5, at 128.
Based on this record, it was objectively reasonable for the Michigan Court of Appeals to
find that the prosecutor did not engage in conduct intended to provoke Petitioner into
moving for a mistrial. The prejudicial testimony was not deliberately solicited by the
prosecutor, nor did he have any reason to provoke a motion for a mistrial. Because the
state court reasonably adjudicated this claim, Petitioner has failed to demonstrate
entitlement to relief.
B. Admission of Evidence
Petitioner’s second claim asserts that his trial was rendered fundamentally unfair
by the admission of testimony that officers went to his family’s house on a report of
“family trouble” and that they found a machete at the house. The claim is not cognizable
on federal habeas review.
“Errors by a state court in the admission of evidence are not cognizable in habeas
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proceedings unless they so perniciously affect the prosecution of a criminal case as to
deny the defendant the fundamental right to a fair trial.” Biros v. Bagley, 422 F.3d 379,
391 (6th Cir. 2006). Typically, “to show a due-process violation under AEDPA rooted in
an evidentiary ruling, there must be a Supreme Court case establishing a due-process right
with regard to that specific kind of evidence.” Collier v. Lafler, 419 F. App’x 555, 558
(6th Cir. 2011).
Here, the Michigan Court of Appeals found that the admission of the disputed
evidence was proper under state law. With respect to the testimony that police responded
to a call based on “family trouble,” the Michigan Court of Appeals found that the
testimony was properly admitted to explain how the machete was recovered, not to show
that Petitioner had an inclination for wrongdoing in general. Parks, 2014 WL 6713481, at
*2. Coulter testified that she believed the machete recovered from the house was the same
weapon he used during the robbery. Dkt. 11-7, 23-24. The testimony regarding how and
where the machete was recovered established a foundation to admit it as an exhibit under
Michigan Rule of Evidence 901. The machete was a key part of the prosecutor’s case in
that it supported the armed element of the armed robbery charge.
Petitioner has failed to demonstrate state evidentiary error with respect to the
circumstances surrounding the recovery of the machete, let alone a violation of his due
process right to a fundamentally fair trial. Nor does his claim rely on a Supreme Court
case establishing a due-process right prohibiting admission of the specific kind of
evidence at issue. Collier, 419 F. App’x at 558. Petitioner is not entitled to relief on his
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second claim.
C. Effective Assistance of Counsel
Petitioner’s third claim asserts that his counsel was ineffective for failing to ensure
that the photograph Duncan showed Coulter to identify Petitioner was sufficiently
cropped so that the jury could not deduce that it came from the Michigan Department of
Corrections website. The Michigan Court of Appeals reasonably rejected this claim on
the merits.
The “clearly established law” for purposes of reviewing ineffective assistance of
counsel claims under the AEDPA is Strickland v. Washington, 466 U.S. 668 (1984).
Williams v. Taylor, 529 U.S. 362, 390-91 (2000). The two-pronged Strickland test
requires a showing of deficient performance and resulting prejudice. Strickland, 466 U.S.
at 687. A petitioner may show that counsel’s performance was deficient by establishing
that counsel’s performance was “outside the wide range of professionally competent
assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at
687.
Habeas relief may be granted only if the state-court decision unreasonably applied
the standard for evaluating ineffective-assistance-of-counsel claims established by
Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not
whether a federal court believes the state court's determination under the Strickland
standard was incorrect but whether that determination was unreasonable - a substantially
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higher threshold.” Id. at 123 (internal quotation omitted).
The Michigan Court of Appeals rejected this claim as follows:
The victim identified defendant after her sister showed her a picture of
him. This picture was admitted as an exhibit at trial. The exhibit was a picture
of defendant in front of a cinder block wall with the words “BIOGRAPHICAL
INFORMATION” above it and defendant’s name below it. The picture was
taken from the Michigan Department of Corrections Offender Tracking
Information System (OTIS) website, although there is no explicit indication
of this on the exhibit.
Defendant first argues that his trial counsel rendered ineffective
assistance by failing to move in limine to redact “BIOGRAPHICAL
INFORMATION” and defendant’s name from the exhibit because it was
obvious that the picture was from the Michigan Department of Corrections
website and that defendant had a criminal history. We disagree.
To establish an ineffective assistance of counsel claim, the defendant
must show that “(1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have been different.” People v.
Trakhtenberg, 493 Mich. 38, 51 (2012). Because defendant failed to preserve
this issue, our review is limited to errors apparent on the record. See People v.
Ginther, 390 Mich. 436 (1973); People v. Jordan, 275 Mich. App. 659, 667
(2007).
Defendant does not dispute that the prosecutor was entitled to introduce
the picture the victim used to identify defendant as her assailant. Defendant
argues, however, that “[h]ad the headings been redacted, the photograph could
at best be viewed as a being [sic] taken anywhere.” However, even if a
knowledgeable juror may have speculated that the photograph was taken from
the Michigan Department of Corrections website, redacting the photograph as
suggested by defendant would not have eliminated this possibility.
Consequently, defendant has failed to establish that his counsel’s performance
fell below an objective standard of reasonableness and that, but for counsel’s
deficient performance, there is a reasonable probability that the outcome
would have been different. See Trakhtenberg, 493 Mich. at 51.
Parks, 2014 WL 6713481, at *3.

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This decision constituted a reasonable application of the Strickland standard.
Petitioner attached a copy of his photograph taken from the Michigan Department of
Corrections website to his appellate brief filed in the Michigan Court of Appeals. See Dkt.
11-10, Appellant’s Brief on Appeal, Exhibit B. The uncropped image clearly indicates
that it came from the Department’s website, shows that he was an inmate, indicates his
security level and out-dates, and contains other obviously prejudicial information. In
sharp contrast, the cropped version that was admitted as a trial exhibit shows only
Petitioner’s photograph, his name, and above his picture the heading “Biographical
Information” appears. Id. Exhibit A.
Contrary to Petitioner’s allegations, it would not have been obvious to the jury that
the cropped photograph came from the Department of Corrections website. Counsel
ensured that the prejudicial information on the full web-page was cropped and not
revealed to the jury. The heading “Biographical Information” on its own did not suggest
any particular source for the photograph. Based on this record, it was not objectively
unreasonable for the Michigan Court of Appeals to find that Petitioner failed to
demonstrate either deficient performance of prejudice. The claim is therefore without
merit.
As none of Petitioner’s claims merit relief, the petition will be denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability is issued under 28 U.S.C. § 2253. Rule 11 of the Rules
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Governing Section 2254 Proceedings, which was amended as of December 1, 2009,
requires that a district court must “issue or deny a certificate of appealability when it
enters a final order adverse to the applicant. . . . If the court issues a certificate, the court
must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2).” Rule 11, Rules Governing Section 2254 Proceedings. A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a
certificate of appealability indicating which issues satisfy the required showing or provide
reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P.
22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted). Here, jurists of reason would not debate the
Court’s resolution of Petitioner’s claims because they are devoid of merit. Therefore, the
Court denies a certificate of appealability.
The Court will also deny Petitioner leave to appeal in forma pauperis because the
appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).

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V. Order
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH
PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 7, 2017

CERTIFICATE 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 7, 2017.

s/Deborah Tofil
Case Manager

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