Parker v. Booker

Decision Date30 November 2011
Docket NumberCase Number 2:08-CV-13824
PartiesJACK PARKER, JR., Petitioner, v. RAYMOND D. BOOKER, Respondent.
CourtU.S. District Court — Eastern District of Michigan

Honorable Denise Page Hood


This matter is before the Court on Petitioner Jack Parker Jr.'s petition for writ of habeas corpus, filed under 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Newberry Correctional Facility in Newberry, Michigan and is serving a 50-to-100 year prison sentence. The sentence results from his Oakland Circuit Court jury trial conviction of one count of second-degree murder, MICH. COMP. LAWS 750.317. For the reasons that follow the Court will deny the petition but grant Petitioner a certificate of appealability.

I. Facts

This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

On August 9, 2000, defendant frantically knocked on a neighbor's door and asked the neighbor to call "911." Two people at the neighbor's apartment, who were trained in cardiopulmonary resuscitation ("CPR"), went to defendant's apartment to offer aid and found Brady lying naked on a bed, not breathing. They performed CPR until an ambulance arrived to take Brady to a hospital. Brady arrived at the hospital with numerous bruises of varying ages across her chest, abdomen and side, swellingaround her face, and a fractured arm and nose. She was immediately placed on a ventilator, but was determined to be in an irreversible coma with virtually no chance of recovery and, six days later, was removed from life support because of the severity of her injuries. She died shortly thereafter. An autopsy revealed that Brady died because her brain was deprived of oxygen due to an obstruction of her airway, which the medical examiner opined was sustained in an assault.

People v. Parker, 2007 Mich. App. LEXIS 368, 1-2 (Mich. Ct. App. Feb. 15, 2007).

On October 28, 2002 - more than two years after Brady's death - Petitioner was charged in Oakland Circuit Court with open murder. At the preliminary examination Petitioner's appointed counsel waived Petitioner's speedy trial rights and his rights under Michigan's 180-day-rule.

Prior to trial, Petitioner twice successfully moved to have substitute counsel appointed. Petitioner was dissatisfied with the delays caused by his first two attorneys and was dissatisfied with their pretrial preparations. Finally, on April 14, 2005, jury selection began for trial with a third appointed attorney representing Petitioner.

At trial, Sandra Brady's son, Kevin Brady, testified that his mother was an alcoholic who drank almost every day. In July of 2000, Kevin found his mother at a rescue mission. She had just been released from a hospital. Her face was swollen and she had staples in the back of her head. She told her son that she had been beaten by a man named "Jack." Kevin took his mother to his house for the night, but he did not have any contact with her again until he received a call from a hospital on August 10, 2000, informing him that his mother was on life support. She had no brain activity and could not breath on her own. After consultation with doctors and other family members, his mother was removed from a ventilator and died.

George Baker testified that he had hired Petitioner in July of 1999 to work as a machine assembler. Baker eventually fired Petitioner, but stayed in close contact with him. While visiting Petitioner's apartment, Baker saw Petitioner degrade and assault Brady. On one occassion, Bakersaw Petitioner bash his fist onto Brady's head. Baker warned Brady to leave the apartment before Petitioner killed her.

On another occassion, Petitioner called Baker and told him that he had beat-up Brady. Baker told Petitioner to take her to the hospital. A few days later Brady nevertheless returned to Petitioner's apartment. Petitioner called Baker again and told him that Brady was dizzy and staggering and that she could not see well. He told Baker that he would kill the "bitch" if she did not get out of his apartment.

Bonnie Flowers testified that she lived in the same apartment complex as Petitioner. Petitioner had introduced Brady to her a few months prior to her death as his "ho." Flowers saw injuries on Brady's face. Later in the summer, she saw Brady sitting outside crying and saw that she was bleeding from the mouth.

The day before Brady's death, Flowers was with Medina at the apartment, and she heard Petitioner yelling at Brady to get out. Later, through the window she saw Petitioner grab Brady by the neck and try to force her into the apartment. She also saw Petitioner push Brady to the ground in his apartment but did not see Brady get up. Cesar Medina testified that he was with Flowers and heard the arguing on August 9, 2000. He testified that he could see through the window Petitioner swinging his fists.

The preliminary examination testimony of Jeffery McAuliffe, deceased at the time of trial, was read into the record. McAuliffe testified that on August 10, 2000, Petitioner came to his apartment door and asked for someone to call 9-1-1. McAuliffe went into Petitioner's apartment and saw Brady lying naked on the bed. McAuliffe attempted to perform CPR. He heard gurgling noises, but Brady was not breathing and he could not find a pulse. Petitioner said that he did not wantBrady to die and that he didn't want to murder her.

Courtney McMahon likewise arrived at the scene to help. Brady looked dead to her. Petitioner told her that Brady was a prostitute that he had just met and they had been drinking all night. McMahon later heard a resident of the apartment complex, Cesar Medina, say that he did not like Petitioner and would lie if had to in order to get him out of the complex. Sophie Rieger testified that she also went inside Petitioner's apartment and saw a naked woman lying on the bed. She could not find a pulse on Brady. While she assisted giving Brady CPR, she thought she was able to detect a weak pulse.

Ben Upton, a paramedic, responded to the scene. He found Brady on the bed, not breathing. Upton was surprised by the amount of bruises on Brady's body. Dr. Andrew Korcek testified that he treated Brady at the hospital. She was unresponsive and had extensive injuries in her chest area. She also had a broken arm. Dr. Korcek opined that Brady had been beaten into a coma. Brady had an initial short-time improvement at the hospital but her condition rapidly declined. Her brain stem was failing, and she had no chance of a recovery and would never breath on her own. Petitioner told Dr. Korcek that Brady had been gurgling and then collapsed.

Dr. Bernardino Pacris, the pathologist who performed the autopsy, testified that based on his examination of Brady's body, she died because her brain was deprived of oxygen due to an obstruction of her airway. Dr. Pacris noted four broken ribs and a broken arm.

Terry Johnson testified that he knew Petitioner from prison. Petitioner told Johnson about his relationship with Brady and how he beat her. Petitioner told Johnson that on the night of the fatal beating, he had thrown Brady to the ground, slammed her on the bed, and then had sex with her, but Brady did not move. Petitioner admitted to Johnson that he had killed her.

Petitioner did not testify in his own defense, and the defense rested without calling any defense witnesses. The jury found Petitioner guilty of second-degree murder, and the court sentenced him to 50-to-100 years in prison as a fourth-time habitual felony offender.

Petitioner then filed an appeal of right and raised four issues in the Michigan Court of Appeals in the brief filed by his appointed appellate counsel:

I. Petitioner's conviction must be vacated and the charges dismissed with prejudice based on the pre-arrest delay, the violation of the 180-day rule, and/or the violation of his constitutional rights to speedy trial.
II. Petitioner is entitled to a new trial because his constitutional rights to the effective assistance of counsel were violated per se where he was under-represented at critical stages.
III. The trial court erred in denying the defense's motion for mistrial after the jury sent a note indicating that it was deadlocked at 11-1 for a second-degree murder conviction and accusing the holdout of misconduct. Under the circumstances, making the jury continue deliberations was coercive of the lone holdout.
IV. Defense counsel rendered ineffective assistance where he failed to request that the court instruct the jury on gross negligence involuntary manslaughter.
Petitioner also filed a supplemental pro se brief, raising an additional five claims:
I. Despite Petitioner's request and timely objection, did the prosecutor and defense counsel persuade the court to omit from juror consideration the sole theory for acquittal on all counts: that there was a reasonable doubt the Petitioner caused the death of Sandra Brady?
II. In two notes the jury requested clarification of the charge; counsel and the court agreed to direct the jury to rely on the photocopied charge as given: as Petitioner required the charge be amended to include a meaningful definition of causation, a request the court refused, is this reversible error?
III. Petitioner requested a definition of beyond a reasonable doubt that awards juror indecision to a defendant; was it error for the court to refuse to give the instruction?
IV. Petitioner was represented by three court appointed attorneys; as none motioned the court for an order that res gestae witnesses be produced in court, is there reversible error?
V. The initial 26 months delay from alleged crime to issuance of complaint was a fraudulent excuse to conduct an "investigation" in defiance of the fair investigation clause, Mich Const 1963,

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