Parker v. Burt

• Decision Date: 15 December 2014
• Docket Number: Case No. 1:11-cv-1297
• Court: U.S. District Court — Western District of Michigan
• Parties: LONNIE L. PARKER, Petitioner, v. SHERRY BURT, Respondent.

LONNIE L. PARKER, Petitioner, v. SHERRY BURT, Respondent.

Case No. 1:11-cv-1297

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

December 15, 2014

Honorable Janet T. Neff

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following a jury trial in the Muskegon County Circuit Court, Petitioner was convicted of assault with intent to commit great bodily harm less than murder, MICH. COMP. LAWS § 750.84, and unarmed robbery, MICH. COMP. LAWS § 750.530. On January 30, 2009, Petitioner was sentenced as a fourth felony offender, MICH. COMP. LAWS §769.12, to respective prison terms of 9 to 25 years and 15 to 25 years. In his pro se petition, Petitioner raises fifteen grounds for relief, as follows:

I. VIOLATION OF [PETITIONER'S] U.S. CONST. PROTECTED 5TH AND 14TH AMENDMENT RIGHT TO DUE PROCESS. PRO PER [PETITIONER] WAS CHARGED WITH "ASS. GBH" GOING INTO "PRELIM" 30+ DAYS AFTER ARREST. UNKNOWN TO [PETITIONER] THE STATE WAS SEEKING ROBBERY CHARGES AND ADDED SUCH AT END OF PRELIM. [PETITIONER] COULDN'T PREPARE ON ZERO NOTICE, CALL ANY WITNESS OR EVEN QUESTION THE STATE'S WITNESS (PER THE COURT) ON THE ISSUE OF ADDED ROBBERY COUNT; WHICH COULD HAVE PREVENTED A BIND OVER.

II. VIOLATION OF [PETITIONER'S] 6TH AMENDMENT RIGHT TO REPRESENT HIMSELF. [PETITIONER] WAS HAVING COMMUN-

ICATION, STRATEGIC, AND PERSONAL PROBLEMS WITH HIS RETAINED COUNSEL AND WROTE THE COURTS CLEARLY EXPRESSING HIS DESIRE TO REPRESENT HIMSELF IN TRIAL. [PETITIONER] WAS DENIED AND FORCED INTO TRIAL WITH COUNSEL WHOM ALSO WANTED OFF OF CASE.

III. VIOLATION OF [PETITIONER'S] 6 AM CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. COUNSEL FAILED TO PREPARE BY FAILING TO INTERVIEW ANY DEFENSE OR STATE WITNESS PRIOR TO TRIAL, IN ADDITION FAILED TO PROPERLY EXPLAIN [PETITIONER'S] GUIDELINES WHEN COUNSEL ERRONEOUSLY SHOWED [PETITIONER] WHERE HE COULD ONLY RECEIVE LESS TIME THAN HE ACTUALLY RECEIVED AT SENTENCE.

IV. VIOLATION OF [PETITIONER'S] 6[TH] AMENDMENT RIGHT TO CONFRONT. THE DEFENSE WAS PREVENTED FROM PROVING THE VICTIM WAS ON DRUGS AT THE TIME IN QUESTION. THE COURT WOULD NOT ALLOW THE DEFENSE TO QUESTION ON ANY ISSUE OF DRUG USE, POSSESSION OR SALE BY THE VICTIM.

V. VIOLATION OF [PETITIONER'S] 5TH AND 14TH AMENDMENT RIGHT TO DUE PROCESS. THE PROSECUTION MADE STATEMENT TO THE JURY IN THEIR CLOSE, THAT THE DEFENSE WAS TRYING TO TRICK THE JURY; TRYING TO SHAM OR FLIM-FLAM THEM.

VI. VIOLATION OF [PETITIONER'S] 5TH AND 14TH AM RIGHT TO DUE PROCESS. THE STATE SENTENCED [PETITIONER] ON INACCURATE INFO, RECORD EVIDENCE SHOWS VICTIM WAS PUSHED A FEW FEET AND ASSAULTED, OUTSIDE ON A MAJOR CORNER WHERE MORE PEOPLE COULD VIEW [PETITIONER'S] ACTIONS WHILE STILL IN VIEW OF STORE WITNESS VIA GLASS DOOR. THE STATE'S OV 8 SCORE WAS WRONGLY APPLIED.

VII. VIOLATION OF [PETITIONER'S] 5TH AND 14TH AM RIGHT TO DUE PROCESS. THE STATE REFUSED DEFENSE REQUEST FOR NEW TRIAL AND AN EVIDENTIARY HEARING. [PETITIONER] ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL AND PROSECUTION MISCONDUCT WHERE PROSECUTION WITNESS MADE AFFIDAVIT ALLEGING SHE WAS PRESSURED TO TESTIFY A WAY FAVORABLE TO THE STATE AND THAT THE STATE WAS HOLDING PENDING CHARGES OVER THEIR HEADS.

VIII. VIOLATION OF [PETITIONER'S] DUE PROCESS RIGHTS 5TH AND 14TH AMENDMENT. THE PROSECUTION REFERRED MANY TIMES TO THE JURY THAT [PETITIONER] COULD HAVE OR SHOULD HAVE BROKEN HIS RIGHT TO SILENCE AND COME CLEAN WITH POLICE.

IX. VIOLATION OF [PETITIONER'S] 6[TH] AMENDMENT RIGHT TO CONFRONT. THE VICTIM TESTIFIED HE WAS TOLD [PETITIONER] ROBBED HIM. DEFENSE COUNSEL FAILED TO OBJECT TO THIS OBVIOUS HEARSAY TESTIMONY. THERE WAS NO OTHER WITNESS TESTIMONY ALLEGING SUCH. THE DEFENSE IN NO WAY COULD CONFRONT THIS STATEMENT OR THESE PEOPLE AS THEIR IDENTITY IS UNKNOWN.

X. VIOLATION OF [PETITIONER'S] 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. [PETITIONER] WAS ALLOWED TO FILE PRO PER MOTIONS IN TRIAL COURT VIA HIS ATTORNEY. COUNSEL WAS THEN GIVEN SEVERAL MOTIONS BY [PETITIONER] WEEKS BEFORE TRIAL. COUNSEL RESPONDED BY REPETITIOUSLY FILING ONE MOTION AND UNTIMELY FILING OTHER MOTION (ON DAY OF TRIAL) WHICH IS WHY MEDICAL RECORDS MOTION WAS DENIED.

XI. VIOLATION OF [PETITIONER'S] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6TH AMENDMENT. SEVERAL PROSECUTION WITNESSES HAD PENDING CRIMINAL CHARGES BEFORE SAID PROSECUTION[']S OFFICE AND DEFENSE COUNSEL REFUSED TO IMPEACH OR QUESTION THESE WITNESSES BEFORE THE JURY ON POTENTIAL BIAS, FEAR OR DEALS.

XII. VIOLATION OF [PETITIONER'S] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6[TH] AMENDMENT. DEFENSE COUNSEL ALLOWED VICTIM TO TESTIFY FALSELY WHEN THE VICTIM TESTIFIED HE MAY HAVE WATCHED WITNESS MS. CUNNINGHAM'S CHILDREN ONCE OR TWICE. DEFENSE COUNSEL KNEW AND HAD STATE DOCUMENTATION THAT VICTIM WAS PAID BI-WEEKLY FOR BEING SAID CHILDREN'S (STATE HIRED) DAILY CHILD CARE PROVIDER (FOR YEARS) AND COUNSEL REFUSED TO IMPEACH.

XIII. VIOLATION OF [PETITIONER'S] 5TH AND 14TH AMENDMENT RIGHTS TO DUE PROCESS. THE COURT ALLOWED CLASS OF 11 OR 12 YEAR OLDS TO SIT IN ON JURY TRIAL WHICH GRA[PH]IC

PHOTOS AND EVIDENCE WERE SHOWN. THESE CHILDREN CAPTURED THE [PETITIONER'S] AND JURY'S ATTENTION SEVERAL TIMES WITH THEIR PRESENCE AND FAINT REACTIONS TO SUCH EVIDENCE.

XIV. VIOLATION OF [PETITIONER'S] RIGHT TO ACCESS THE COURTS UNDER THE 1ST AMENDMENT. PETITIONER WAS DENIED ACCESS TO LEGAL MATERIALS AND ANY FORM OF RESEARCH THAT WOULD ALLOW HIM TO PREPARE FOR TRIAL. MUSKEGON COUNTY HAS LAW LIBRARIES AND UNLIKE OTHER COUNTY'S [SIC] THEY REFUSE DEFENDANTS FROM ACCESS TO IT OR MATERIALS FROM IT, TO AID IN A DEFENDANT[']S ABILITY TO EFFECTIVELY HELP IN HIS DEFENSE.

XV. VIOLATION OF [PETITIONER'S] 6[TH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. [PETITIONER'S] COUNSEL EXPRESSED MANY TIMES HIS LOYALTY WAS WITH MUSKEGON COUNTY WHOM HE FORMALLY REPRESENTED. COUNSEL ALSO EXPRESSED HIS RELUCTANCE TO FILE ANY MOTION OR DO ANYTHING ON CLIENT'S BEHALF THAT MAY INCONVENIENCE THE COURT OR CAUSE THE JUDGE TO HAVE TO "WORK." HE MENTIONED HE AND THE JUDGE WERE GOOD PERSONAL FRIENDS AND IN FACT THE JUDGE HAD EVEN ONCE WORKED FOR HIM.

(Pet., docket #1, Page ID##4-31.) Respondent has filed an answer to the petition (docket #11) stating that the grounds should be denied because they are non-cognizable, procedurally defaulted, and/or without merit. Upon review and applying the AEDPA standards, I find that all of the grounds are either procedurally defaulted, non-cognizable, or without merit. Accordingly, I recommend that the petition be denied.

Procedural History

A. Trial Court Proceedings

The state prosecution arose from Petitioner striking his cousin, Darin Sargent, with sufficient force to break Sargent's jaw and to cause him to fall to the pavement, resulting in a headinjury. Petitioner was charged with assault with intent to cause great bodily harm less than murder. A preliminary examination was held on July 2, 2008, at which time Petitioner dismissed his retained attorney, Joseph Fisher, and represented himself. (7/2/08 Prelim. Exam. Tr. at 5, docket #14.) After the evidence was introduced, the prosecutor moved to add a count of unarmed robbery. (Id. at 37.) Petitioner was bound over on both charges. (Id. at 42.)

On July 25, 2008, Christopher Wilson was appointed to represent Petitioner. (Case Register, docket #13 at 2.) Four days later, on July 29, 2008, Petitioner's family retained Al E. Swanson as Petitioner's attorney to replace Mr. Wilson. (Id.) On August 18, 2008, the court held a Cobbs hearing¹ on a possible plea agreement, but no plea ultimately was entered. On September 30, 2008, attorney Swanson moved to withdraw as counsel, due to a breakdown in the attorney-client relationship and Petitioner's desire to hire a different attorney. The motion was heard on October 2, 2008, two weeks before trial was scheduled to begin. Under the circumstances and with the prosecutor's consent, the motion was granted. (10/2/08 Mot. Hr'g Tr., docket #17.) Petitioner then retained attorney Steven Corwin on October 20, 2008. (Id.) On December 22, 2008, just over two weeks before trial, the Court held a hearing on attorney Corwin's request to withdraw as counsel and to permit Petitioner to represent himself. (12/22/08 Mot. Hr'g Tr., docket #16.) The motion was denied on the grounds that Petitioner had not expressed an unequivocal intention to withdraw within the standard established in People v. Anderson, 247 N.W.2d 857 (Mich. 1976).

Petitioner was tried before a jury beginning January 6, 2009 and ending January 8, 2009.² On the morning of first day of trial, the court also heard the prosecutor's motion in limine to bar testimony concerning the victim's prior behavior leading up to the assault, contending that it was irrelevant to the charges and amounted to a request for jury nullification. (Tr. I at 3-4.) Defense counsel responded that the evidence concerning the background and relationship between Petitioner and the victim was critical to show that Petitioner did not have the intent to do great bodily harm and did not commit the robbery. Instead, the evidence would show that Petitioner and the victim were cousins and friends who had previously had other altercations and that Petitioner intended only to teach his cousin a lesson. Absent evidence of the background, the defense would be left without an ability to offer an explanation for Petitioner's behavior that allowed the jury to understand how Petitioner had hit the victim so hard as to cause major injury without intending the consequences. Counsel believed that, in context, the jury reasonably could find Petitioner guilty of a lesser assault offense. (Id. at 6-8.)

The court also addressed a defense motion to preclude the introduction of evidence of the head injury and a motion to dismiss the unarmed-robbery charge added at the preliminary examination, both of which the court denied. (Id. at 15-22.) In addition, the trial court fully described...