Brown v. Jackson

• Decision Date: 25 July 2017
• Docket Number: Case No. 1:17-cv-571
• Parties: ANTHONY BROWN, Petitioner, v. SHANE JACKSON, Respondent.
• Court: U.S. District Court — Western District of Michigan

ANTHONY BROWN, Petitioner, v. SHANE JACKSON, Respondent.

Case No. 1:17-cv-571

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 25, 2017

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 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 the petition must be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations

Petitioner Anthony Brown presently is incarcerated at the Carson City Correctional Facility. Petitioner pleaded guilty in the Chippewa County Circuit Court to assault with intent to commit great bodily harm less than murder, MICH. COMP. LAWS § 750.84. On July 21, 2009, the court sentenced him to a prison term of three years and seven months to ten years.

Petitioner was released on parole in early 2016. On June 29, 2016, Petitioner was charged with three parole violations:

Count 1, violation of condition 04: On or about June 20, 2016 you engaged in behaviour that was assaultive, abusive, threatening and/or intimidating by harassing/threatening Monika Rejman using a telecommunications device

Count 2, violation of condition 04: On or about June 28, 2016 you engaged in behavior that was assaultive, abusive, threatening and/or intimidating by using verbally abusive language towards Pontiac Parole Officer Milam J. Brooks.

Count 3, violation of condition 04, On or about June 28, 2016 you engaged in behavior that was assaultive, abusive, threatening and/or intimidating by using verbally abusive language towards Pontiac Parole Officer Daniel Nash.

(Prelim. Parole Violation Hr'g Report, ECF No. 1-1, PageID.22.) A preliminary parole violation hearing was held on July 5, 2016, at which Petitioner and his parole agent, Milam Brooks, were present. Agent Brooks testified at the hearing, and the examiner played recordings of telephone messages left for the victim, Monika Rejman, by Petitioner. At the end of the hearing, the hearing officer found probable cause to believe that Petitioner had committed the violations. (Id., PageID.22-23.)

The parole board subsequently conducted the formal parole hearing. Before the hearing, Petitioner agreed to plead guilty to Count 2, and Parole Specialist Michelle Risley moved to dismiss Count 3 for cause. At the hearing on Count 1, both Rejman and Petitioner testified, asdid Oakland County Detective James Zoedak. In addition, Petitioner's voice mails, texts, and facebook posts were admitted into evidence. Petitioner defended himself on the ground the Rejman caused Petitioner to be discharged from his job, because Petitioner had refused Rejman's request for oral sex. The hearing officer found Petitioner guilty of the first count, making the following findings:

To prove count 1, the State must show that the parolee engaged in assaultive, abusive, threatening, or intimidating behavior. It is undisputed that the parolee left both voicemail messages for Monika after he was terminated from his employment. His tone during the calls is extremely aggressive. He calls Monika a "stinky slut, ugly ass, crater face bitch, bumpy face, foreign ass ugly fucking bed bu[g] bringing into this country foreign ass bitch." During the second call, he tells her he is going to "fuck up your family just like you fucked up mine." The only reasonable conclusion to draw from the parolee's vulgar, indecent, and offensive word choice is that he intended to frighten, intimidate, and harass Monika.

I considered the parolee's defense and attributed it no weight. His main claim - that Monika had him fired from his job to get back at him because he declined her offer to perform oral sex on him - lacks any record support. After listening to the testimony and observing the demeanor of all parties, the examiner only concludes that Monika has absolutely zero sexual interest in the parolee. She would not have offered to perform oral sex on him, and if she had, the parolee would have hastily accepted. While his account provides loads of comic relief, it fails for plausibility.

It should also be noted that even assuming the parolee was being truthful, a stretch that almost hinges on absurdity, he does not establish any justification for the harassing, threatening, and intimidating voicemails that he left on Monika's phone. Retribution for losing his employment is not a defense.

I find that the parolee left both voicemails on Monika's phone. He lodged many offensive remarks toward her and threatened to fuck up her family. His tone and word choice comfortably fits beneath the umbrella of threatening or intimidating behavior. He is GUILTY of count 1.

(Formal Parole Violation Hr'g Report, ECF No. 1-1, PageID.27.) Because of the disturbing nature of Petitioner's messages and Petitioner's lack of remorse, and noting that Petitioner was in custody on the underlying assault charge, the hearing officer recommended a continuance before the nextparole hearing. (Id.) On August 2, 2016, the Parole Board found him guilty of Counts 1 and 2 and continued consideration of his parole for twelve months.

Petitioner delayed filing a claim of appeal until May 5, 2017. (Claim of Appeal, ECF No. 1-1, PageID.18.) The Ingham County Circuit Court dismissed the appeal as untimely on June 13, 2017. (Order of Dismissal, ECF No. 1-1, PageID.19.)

In his habeas application, Petitioner raises the following issue:

I. The Complaining Witness was not present at the Preliminary Revocation Hearing.

(Pet., ECF No. 1, PageID.6.)

Discussion

I. Exhaustion

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 reviewprocess." 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.

The exhaustion requirement applies to claims challenging the revocation of parole. See Sneed v. Donahue, 993 F.2d 1239, 1241 (6th Cir. 1993) (noting that petitioner had exhausted all state remedies before bringing habeas action challenging the revocation of his parole); Brewer v. Dahlberg, 942 F.2d 328, 337 (6th Cir. 1991) (dismissing challenge to state parole revocation because state remedies were arguably available). Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The state courts should have a full and fair opportunity to cure any constitutional infirmities in petitioner's conviction. See Brewer, 942 F.2d at 340. "[A] state may not be considered to have waived the defense of nonexhaustion unless it does so expressly and through counsel." Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir. 2000).

Parole revocations are subject to direct review under Michigan's Administrative Procedures Act, Mich. Comp. Laws § 24.304(1). See Penn v. Dep't of Corr., 298 N.W.2d 756, 757-58 (Mich. Ct. App. 1980) (noting that the MDOC is an agency for purposes of the Administrative Procedures Act and that a parole revocation proceeding is a contested case that triggers application of the Administrative Procedures Act); Witzke v. Withrow, 702 F. Supp. 1338, 1348-49 (W.D. Mich. 1988). Under the Administrative Procedures Act, a prisoner may file a petition in circuit court to appeal a final decision of the parole board within sixty days after the date of mailing notice of the agency's final decision. See MICH. COMP. LAWS § 24.304(1). Petitioner did not seek review under the APA within sixty days of the parole board's decision. As a result, the circuit court denied the appeal as untimely.

A prisoner also may attack the decision to revoke his parole by filing a state petition for habeas corpus relief. See Morales v. Mich. Parole Bd., 676 N.W.2d 221, 230 (Mich. Ct. App. 2003); Hinton v. Mich. Parole Bd., 383 N.W.2d 626, 629-30 (Mich. Ct. App. 1986); Triplett v. Deputy Warden, 371 N.W.2d 862, 865 (Mich. Ct. App. 1985); see also Caley v. Hudson, 759 F. Supp. 378, 381 (E.D. Mich. 1991) (dismissing federal habeas corpus petition by a state prisoner for lack of exhaustion of his available state habeas...