Parrish #219258 v. Campbell
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
MARK ANDREW PARRISH,
Case No. 1:16-cv-1146
Honorable Robert Holmes Bell
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, RULES
GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed.
Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen
out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which
raise legally frivolous claims, as well as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the
review required by Rule 4, the Court concludes that Petitioner has failed to exhaust his available
state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60
days remaining in the limitations period for filing a habeas petition, the Court will stay the petition
and hold it in abeyance pending his exhaustion of the currently unexhausted claims.
Following a jury trial in the Wexford County Circuit Court, Petitioner was convicted
of seven counts of first-degree criminal sexual conduct (CSC I), MICH. COMP. LAWS § 750.520b,
and one count of second-degree criminal sexual conduct (CSC II), MICH. COMP. LAWS § 750.520c.
On May 28, 2014, Petitioner was sentenced as a fourth-offense felony offender, MICH. COMP. LAWS
§ 769.12, to seven terms of imprisonment of 30 to 60 years on the CSC I convictions and one term
of 10 to 30 years on the CSC II conviction.
Petitioner appealed his convictions to the Michigan Court of Appeals, raising the
following two claims:
[PETITIONER] WAS DENIED HIS STATE AND FEDERAL
CONFRONTATION RIGHTS WHEN THE TRIAL COURT SUA SPONTE
DETERMINED THAT BETH’S STATEMENTS RECANTING HER
ALLEGATIONS TO HER GUARDIAN AD LITEM WERE PROTECTED
BY ATTORNEY-CLIENT PRIVILEGE AND WERE THEREFORE
INADMISSIBLE AT TRIAL. THIS ERROR WAS EXACERBATED BY
THE PROSECUTOR’S MISCONDUCT, WHICH VIOLATED
[PETITIONER’S] STATE AND FEDERAL DUE PROCESS RIGHTS.
[PETITIONER] WAS PREJUDICED BY THESE ERRORS AND SO HIS
CONVICTIONS MUST BE VACATED. TO THE EXTENT DEFENSE
COUNSEL FAILED TO ADEQUATELY RESPOND TO THE TRIAL
COURT’S RULING AND TO OBJECT TO THE PROSECUTOR’S
MISCONDUCT, HIS PERFORMANCE CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL, ALSO ENTITLING [PETITIONER] TO A
[PETITIONER] WAS DENIED HIS STATE AND FEDERAL RIGHTS TO
THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE
COUNSEL FAILED TO SEEK ADMISSION OF A FORENSIC
INTERVIEW TRANSCRIPT SHOWING THAT BETH RECANTED ON
MULTIPLE OCCASIONS TO SEVERAL DIFFERENT PEOPLE OR TO
OTHERWISE USE INFORMATION CONTAINED IN THE TRANSCRIPT
TO IMPEACH BETH’S TESTIMONY.
(Pet., ECF No. 1, PageID.3.) The court of appeals granted Petitioner’s motion to remand for an
evidentiary hearing. Following remand, in an unpublished opinion issued on November 25, 2016,
the court of appeals denied all appellate grounds and affirmed the convictions. Petitioner raised the
same two grounds to the Michigan Supreme Court, which denied leave to appeal on June 30, 2015.
According to the habeas application, Petitioner mailed a motion for relief from
judgment to the Wexford County Circuit Court on September 1, 2016, raising the following four
[PETITIONER] WAS DENIED HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL WHERE HIS LAWYER FAILED TO (A) STRIKE JURORS
WHO WERE IMPARTIAL, (B) PRESENT EVIDENCE SUPPORTING HIS
STRATEGICALLY CHOSEN DEFENSE, (C) CONDUCT A PROPER
INVESTIGATION BY CONSULTING THE AVAILABLE LITERATURE
OR AN EXPERT WITNESS WHICH CAUSED HIM TO ELICIT
DAMAGING TESTIMONY FROM EXPERT WITNESS ON CROSSEXAMINATION AND ALSO LED TO HIS FAILURE TO USE THE
AVAILABLE LITERATURE, EXPERT WITNESS TESTIMONY, AND
(D) DO ALL OF THE ABOVE WHICH, WHEN CONSIDERED
CUMULATIVELY, PREJUDICED [PETITIONER].
[PETITIONER] IS ENTITLED TO A NEW TRIAL BASED ON NEWLY
[PETITIONER] WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT
RIGHT TO A FAIR TRIAL WHEN THE PROSECUTOR SUPPRESSED
[PETITIONER] WAS DENIED HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL WHERE ARGUMENTS I, II, AND III WERE
NOT RAISED ON DIRECT APPEAL ESTABLISHING THE “GOOD
CAUSE” REQUIRED BY MCR 6.508(D)(3)(a).
In his habeas application, filed on or about September 12, 2016,1 Petitioner raises all
six grounds presented to the Michigan courts.
Failure to exhaust available state-court remedies
Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts
have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s
constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995), and Anderson v. Harless, 459 U.S. 4,
6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal
claims to all levels of the state appellate system, including the state’s highest court. Duncan, 513
U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). “[S]tate prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue
sua sponte, when it clearly appears that habeas claims have not been presented to the state courts.
See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39.
Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing
to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner dated his application on September
12, 2016, and it was received by the Court on September 19, 2016. Thus, it must have been handed to prison officials
for mailing at some time between those dates. For purposes of this opinion, the Court has given Petitioner the benefit
of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the
prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v.
Saunders, 206 F. App’x 497, 498 n.1 (6th Cir. 2006)).
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). Petitioner acknowledges that, while he exhausted his first two grounds for
habeas relief on direct appeal to both the Michigan Court of Appeals and the Michigan Supreme
Court, he has not fully exhausted the remaining four claims.
An applicant has not exhausted available state remedies if he has the right under state
law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner
has at least one available procedure by which to raise the unexhausted issues he has presented in this
application: a motion for relief from judgment under MICH. CT. R. 6.500 et. seq. He has filed his
one permitted motion for relief, see MICH. CT. R. 6.502(G)(1), but the circuit court has not
completed review of those claims. If his motion is denied by the Wexford County Circuit Court,
Petitioner must appeal that decision to the Michigan Court of Appeals and the Michigan Supreme
Court. See Duncan, 513 U.S. at 365-66.
Because Petitioner has some claims that are exhausted and some that are not, his
petition is “mixed.” Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to
dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of
limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often
effectively precludes future federal habeas review. This is particularly true after the Supreme Court
ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled
during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-andabeyance procedure to be applied to mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could
jeopardize the timeliness of a subsequent petition, the district court should dismiss only the
unexhausted claims and stay further proceedings on the remaining portion until the petitioner has
exhausted his claims in the state court. Id.; see also Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th
Petitioner’s application is subject to the one-year statute of limitations provided in
28 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), the one-year limitation period runs from “the date
on which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” Petitioner appealed his conviction to the Michigan Court of Appeals and
Michigan Supreme Court. The Michigan Supreme Court denied his application on June 30, 2015.
Petitioner did not petition for certiorari to the United States Supreme Court, though the ninety-day
period in which he could have sought review in the United States Supreme Court is counted under
§ 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period
expired on September 28, 2015. Accordingly, Petitioner had one year, until September 28, 2016,
in which to file his habeas petition. Petitioner filed the instant petition on September 12, 2016, only
16 days before his period of limitations expired.2
The Palmer Court has indicated that thirty days is a reasonable amount of time for
a petitioner to file a motion for post-conviction relief in state court, and another thirty days is a
reasonable amount of time for a petitioner to return to federal court after he has exhausted his statecourt remedies. Palmer, 276 F.3d at 721. See also Griffin, 308 F.3d at 653 (holding that sixty days
Although the trial court’s receipt of the motion for relief from judgment would have tolled the statute of
limitations, the motion was not mailed until at least September 1, 2016. It therefore could not have begun tolling until
some days after that, leaving less than 30 days in the limitations period.
amounts to mandatory period of equitable tolling under Palmer).3 In the instant case, Petitioner has
less than sixty days remaining before the statute of limitations expires. While Petitioner’s motion
for relief from judgment is already filed and he therefore would not need 30 days to file a motion
for post-conviction relief, he still requires time to return to this Court, and he will not have the
additional 30 days to return to this Court before expiration of the statute of limitations. As a result,
were the Court to dismiss the petition without prejudice for lack of exhaustion, the dismissal would
jeopardize the timeliness of any subsequent petition. Palmer, 276 F.3d at 781.
The Supreme Court has held, however, that the type of stay-and-abeyance procedure
set forth in Palmer should be available only in limited circumstances, because over-expansive use
of the procedure would thwart the AEDPA’s goals of achieving finality and encouraging petitioners
to first exhaust all of their claims in the state courts. See Rhines v. Weber, 544 U.S. 269, 277 (2005).
In its discretion, a district court contemplating stay and abeyance should stay the mixed petition
pending prompt exhaustion of state remedies if there is “good cause” for the petitioner’s failure to
exhaust, if the petitioner’s unexhausted claims are not “plainly meritless” and if there is no
indication that the petitioner engaged in “intentionally dilatory litigation tactics.” Id. at 278.
Moreover, under Rhines, if the district court determines that a stay is inappropriate, it must allow
the petitioner the opportunity to delete the unexhausted claims from his petition, especially in
circumstances in which dismissal of the entire petition without prejudice would “unreasonably
impair the petitioner’s right to obtain federal relief.” Id.
Petitioner has moved for a stay of the proceedings (ECF No. 2), indicating that he
wishes to pursue his unexhausted claims in the state courts. Upon review, the Court concludes that
The running of the statute of limitations is tolled while “a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Petitioner has met the requirements of Rhines, 544 U.S. at 277-78. As a consequence, the Court will
grant his motion to stay the proceedings and hold his petition in abeyance pending the exhaustion
of his claims in the Michigan courts.
An Order consistent with this Opinion will be entered.
Dated: October 11, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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