United States ex rel. Parish v. Hodge

• Decision Date: 12 September 2014
• Docket Number: No. 12 C 09981,12 C 09981
• Citation: 73 F.Supp.3d 895
• Parties: United States of America ex rel. Michael J. Parish, Petitioner, v. Marc Hodge, Warden, Lawrence Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

73 F.Supp.3d 895

United States of America ex rel. Michael J. Parish, Petitioner

v.Marc Hodge, Warden, Lawrence Correctional Center, Respondent.

No. 12 C 09981

United States District Court, N.D. Illinois, Eastern Division.

Signed September 12, 2014

Micheal J. Parish, Sumner, IL, pro se.

Gopi Kashyap, Chief of Criminal Appeals, Attorney General's Office, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Court

Illinois prisoner Michael Parish is serving a twenty-five year sentence for robbery. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 1.) Presently before the Court is Parish's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (R. 1, Pet.) For the reasons stated below, Parish's petition for writ of habeas corpus is denied.

BACKGROUND¹

Parish was arrested on November 11, 2007, for the alleged robbery of Rodney Lipscomb. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 2.) The State's Attorney's Office charged Parish with one count each of armed robbery, unlawful use of a weapon by a felon, and aggravated unlawful restraint. (Id.; R. 15–2, Ex. H, Pet'r's Indictment at 21–24.) Prior to the commencement of trial, the State dropped the unlawful use of a weapon by a felon and aggravated unlawful restraint charges. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 2; R. 15–4, Ex. K, Trial Tr. at 2:22–24, 4:1–5.) Judge Diane Cannon presided over Parish's jury trial, which began on January 12, 2010 in the Circuit Court of Cook County. (R. 15–4, Ex. K, Trial Tr. at AA–1.)

At trial, witness testimony varied as to the sequence of events that gave rise to Parish's arrest for armed robbery. Lipscomb testified that on November 2, 2007, after cashing in a lottery ticket worth $500.00, he returned to his housing complex to buy $25.00 worth of cigarettes from an unidentified person. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 3.) Lipscomb said that Parish was present when he purchased the cigarettes. (Id. ) After purchasing the cigarettes, Lipscomb had $520.00 on his person. (Id. ) Lipscomb testified that upon returning to his apartment, as he put his key in the door, a man touched him from behind on his shoulder and said “give it up.” (Id. ) Lipscomb felt what he believed to be a gun on the back of his head. (Id. ) Lipscomb retrieved the $520.00 from his pocket and gave it to the man. (Id. ) When he turned around, he recognized the man as Parish. (Id. ) Lipscomb testified that Parish then fled the building and ran into the building next door. (Id. ) After Parish fled, Lipscomb told his wife to call the police. (Id. )

Chicago Police Officer Jason Murdoch testified that after being assigned to Lipscomb's case, he conducted a phone interview with Lipscomb, during which Lipscomb told Murdoch that he was robbed by a man with the nickname of “Black Rob.” (Id. at 4.) Murdoch knew that “Black Rob” was actually Parish. (Id. ) Murdoch compiled a photo array for Lipscomb, who identified Parish as the offender. (Id. ) Murdoch testified that after Lipscomb identified Parish, Murdoch went to the housing complex to arrest Parish. (Id. ) Detective David Sipchen testified that on November 12, 2007, he was present when Lipscomb identified Parish as the offender from a lineup. (Id. )

Parish's attorney, Kenneth Klaxman, told the jury in his opening statement that Lipscomb fabricated a story about a robbery to exact revenge upon Parish for selling him counterfeit drugs. (R. 15–4, Ex. K, Trial Tr. at 89:1–90:6.) Klaxman stated, “[t]his isn't about a robbery, it isn't about an armed robbery, it's about a drug deal.” (Id. at 90:6–7.)

Parish's testimony supported Klaxman's theory of the case. Parish testified that he knew Lipscomb from the housing complex where they both lived and that he had previously sold Lipscomb drugs. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 4.) Parish said that he had been convicted of drug-related offenses three times and that he was released from jail for his most recent offense on the date of the alleged robbery. (Id. ) Parish testified that after being released from jail, he ground various over-the-counter pills to resemble crack cocaine, and packaged the pills into 50 small plastic baggies in order to sell them. (Id. at 4–5.) Parish said that he wanted to “swindle some money ... out of drug dealers[.]” (R. 15–5, Ex. L, Trial Tr. at 61:7–8.) Parish testified that he sold 37 of the baggies to Lipscomb for $370.00. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 5.) Parish said that after Lipscomb discovered that the substance was not crack cocaine, Lipscomb demanded that Parish refund his money. (Id. ) Parish testified that when he refused to refund the money, Lipscomb became angry and said “don't worry about it[,] I got you.” (Id. ) Two weeks later, police arrested Parish. (Id. ) Parish denied robbing Lipscomb or possessing a gun on the date of the robbery. (Id. ) On cross-examination, Lipscomb acknowledged that he knew Parish from the apartment complex, but he denied that Parish had ever sold him drugs. (Id. at 3.)

The State submitted into evidence a letter Parish sent to Lipscomb, in which he stated that he neither held a gun to Lipscomb's head nor possessed a gun on the day of the robbery. (Id. at 4.) Parish also stated in the letter that the amount of money he had received from Lipscomb was $370.00, not $520.00. (Id. ) In the letter, Parish requested that Lipscomb “tell the truth about what happened.” (Id. ) Parish testified that he wrote to Lipscomb in order to “resolve the whole issue.” (Id. at 5.)

In Klaxman's closing arguments, he reiterated his theory of the case: that Lipscomb fabricated his story about the robbery to retaliate against Parish for selling him fake drugs. (R. 15–5, Ex. L, Trial Tr. at 104:18–106:14, 107:16–112:10.) The jury received instructions from the trial court on the offense of armed robbery and the lesser-included offense of robbery. (Id. at BB137–BB142.) On January 13, 2012, the jury returned a verdict of guilty for the offense of robbery. (Id. at 152:21–24.) Parish received a sentence of twenty-five years of imprisonment. (R. 15–1, Ex. A, Ill.App.Ct. Op. at 5.)

Parish appealed his conviction and sentence through new appellate counsel. (Id. at 1.) On appeal, Parish raised the following arguments: (1) he received ineffective assistance of trial counsel based on trial counsel's failure to request that the trial court instruct the jury on the lesser-included offense of theft² ; (2) the trial court erred in denying trial counsel's motion in limine to bar the State from introducing into evidence for impeachment purposes Parish's prior conviction for attempted aggravated battery; and (3) his mittimus should be amended to reflect the 939 days he spent in pre-sentence custody. (Id. at 5, 8, 10.) The Illinois Appellate Court ordered the Clerk of the Cook County Circuit Court to amend Parish's mittimus to credit him for the 939 days spent in pre-sentence custody and affirmed the judgment of the trial court in all other respects. (Id. at 11.) Regarding Parish's ineffective assistance of counsel claim, the court found that Klaxman's decision not to request a theft instruction was a matter of trial strategy and refused to “second-guess” his tactical decision. (Id. at 7–8.)

Parish filed a petition for leave to appeal (“PLA”) in the Illinois Supreme Court, arguing that his trial counsel's failure to request a jury instruction on the lesser-included offense of theft constitutes ineffective assistance of counsel because the defense's theory of the case was premised on Parish's admission of guilt to theft. (R. 15–1, Ex. F, Parish's PLA at 97–115.) The Illinois Supreme Court denied Parish's PLA without comment on September 26, 2012. (R. 15–2, Ex. G, PLA Denial Order at 1.)

PROCEDURAL HISTORY

Parish filed his pro se petition for federal habeas corpus relief on December 14, 2012. (R. 1, Pet.) In his petition, Parish claims that trial counsel's failure to request a jury instruction for the offense of theft constituted ineffective assistance of counsel. (Id. at 9–15.) On March 27, 2013, Respondent answered Parish's petition and asserted that the petition should be denied with prejudice and without an evidentiary hearing because the ineffective assistance of counsel claim fails on the merits. (R. 14, Answer.) On May 21, 2013, Parish filed a reply and memorandum in support of his petition, arguing that the Illinois Appellate Court unreasonably applied United States Supreme Court precedent in rejecting his ineffective assistance of counsel claim. (R. 19, Pet'r's Reply; R. 20, Pet'r's Mem.)

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas relief may be granted only when a state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “The statutory phrase ‘clearly established Federal law as determined by the Supreme Court of the United States,’ is a critical limitation under [Section] 2254(d)(1) and refers to ... ‘the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision.’ ” Washington v. Smith, 219 F.3d 620, 627 (7th Cir.2000) (quoting 28 U.S.C. § 2254(d) ; Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). “A decision is ‘contrary to’ federal law when the state court applied a rule that ‘contradicts the governing law’ set forth by the Supreme Court or if the state court reached a different outcome based on facts ‘materially indistinguishable’ from those previously before the Supreme Court.” Etherly v. Davis, 619 F.3d 654, 660 (7th Cir.2010) (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495 ). “A state court unreasonably applies federal law if it identifies the correct legal principle but unreasonably applies it to the...