United States v. Parrish

• Decision Date: 26 August 2021
• Docket Number: 2:21-cv-1516,2:16-cr-243
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. SHAWN PATRICK PARRISH, Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, Plaintiff, v. SHAWN PATRICK PARRISH, Defendant.

No. 2:16-cr-243

No. 2:21-cv-1516

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 26, 2021

Algenon L. Marbley, Chief Judge

REPORT AND RECOMMENDATIONS

Michael R. Merz, United States Magistrate Judge

This § 2255 proceeding, in which Defendant is now proceeding pro se, is before the Court for decision on the merits. Relevant pleadings are the § 2255 Motion itself (ECF No 131), the Government's Response in Opposition (ECF No 144), and Defendant's Reply (ECF No. 151).

Litigation History

In December of 2016, the Grand Jury for this District returned a two count indictment charging Petitioner with one count each of Receipt and Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). (Indictment, ECF No. 18).

Aware of child pornography being shared through peer-to-peer file sharing software, law enforcement officers sought and obtained a search warrant for the premises from which that pornography was distributed. The warrant was executed on August 30, 2016, and Parrish was found at the home during the search. He agreed to be interviewed, waived his Miranda rights, and told the officers they would find nude photographs of a twelve-year-old relative on his phone. He claimed he had found them on the child's phone and forwarded them to himself so that he could advise the child's guardians. Later forensic examination of the two telephones and other investigation revealed his claims to be a fabrication. Finding Defendant had consented to the search the Court denied his motion to suppress (ECF No. 61).

At a jury trial, Defendant testified to the same story he had told the agents about why the pornographic images were on his phone. The jury apparently did not believe him, as it convicted him on both counts. After trial the United States dismissed the second count and the Court sentenced Parrish to the mandatory minimum sentence of fifteen years imprisonment (ECF No. 110). The Sixth Circuit affirmed the conviction. United States v. Parrish, 942 F.3d 289 (6^th Cir. 2019)(copy at ECF No. 124). Parrish did not seek Supreme Court review, but filed the instant § 2255 Motion with the assistance of counsel on April 5, 2021.

Analysis

Parrish pleads the following grounds for relief:

Ground One: The prosecution's failure to provide the audio recording [of Parrish's interview] denied Mr. Parrish a full and fair opportunity to litigate his Fourth Amendment claims.

Ground Two: The prosecution's failure to provide the audio recording prior to trial violated Mr Parrish's Fifth Amendment Due Process rights under Brady v. Maryland.

(Motion, ECF No. 131).

A prisoner seeking relief under 28 U.S.C. § 2255 must allege either “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid” Mallett v. United States, 334 F.3d 491, 496-97 (6^th Cir. 2003); Nichols v. United States, 563 F.3d 240, 250 (6^th Cir. 2009). In other words, to warrant relief under § 2255, a prisoner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect of influence on the guilty plea or the jury's verdict. Griffin v. United States, 330 F.3d 733, 737 (6^th Cir. 2006), citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6^th Cir. 1990)(per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6^th Cir. 1991).

The Magistrate Judge concludes Defendant would be entitled to relief if the factual assumptions of his Motion were true. That is to say, if there ever existed an audio recording of his interview that was in the actual or constructive possession of the United States Attorney's Office, that would be material required to be produced pursuant to Brady v. Maryland, 373 U.S. 83 (1963), if it corroborated Parrish's account of the interview or if it impeached the account of the interview by the law enforcement officers. Those officers testified that no audio recording was made because the mute button on the recording equipment was inadvertently pushed.

If in fact such a recording existed, the Government's allowing the agents to testify that none existed would violate Defendant's due process rights. The “deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with the rudimentary demands of justice.” Workman v. Bell, 178 F.3d 759, 766 (6^th Cir. 1998), quoting Giglio v. United States, 405 U.S. 150, 153 (1972). This rule applies to both the solicitation of false testimony and the knowing acquiescence in false testimony. Workman v. Bell, 178 F.3d 759, 766 (6^th Cir. 1998), citing Napue v. Illinois, 360 U.S. 264, 269 (1959).

However, to prevail on such a claim, a petitioner must show that the statement in question was false, that the prosecution knew it was false, and that it was material. Wogenstahl v. Mitchell, 668 F.3d 307, 323 (6^th Cir. 2012), citing Rosenkrantz v. Lafler, 568 F.3d 577, 583-84 (6^th Cir. 2009); Brooks v. Tennessee, 626 F.3d 878, 894-95 (6^th Cir. 2010); Byrd v. Collins, 209 F.3d 486 (6^th Cir. 2000), citing United States v. Lochmondy, 890 F.2d 817, 822 (6^th Cir. 1989); United States v. O'Dell, 805 F.2d 637, 641 (6^th Cir. 1986). The statement must be indisputably false, rather than simply misleading. Lochmondy, 890 F.2d at 823; Byrd v. Collins, 209 F.3d 486, 517 (6^th Cir. 2000).

There is no evidence before this Court that such an audio recording exists or ever existed. Counsel who filed this § 2255 proceeding on behalf of Parrish believed that such a recording existed because the same agents interviewed Jeremy Wigle, Parrish's housemate, and had an audio recording of that interview. That belief was based on communication with Mr. Wigle's counsel who represented him in a state court case arising out of the same investigation. After both of Parrish's attorneys in this proceeding withdrew, the Court undertook to obtain Wigle's recording from his attorney, Diane Menashe (Order to Show Cause, ECF No. 152). However, Ms. Menashe's Response to that Order (ECF No. 154) persuades the Magistrate Judge that Attorney Salinas misunderstood Attorney Menashe's responses to her efforts to obtain the Wigle recording. In fact, Attorney Menashe does not now have and has never had a copy of the Wigle recording. Id.

In his Reply, Parrish ranges very broadly in attacking his conviction, including rearguing the motion to suppress, the merits of the case, and the use of an old conviction from North Carolina against him. Perhaps his filing attorney did not explain to him that a § 2255 proceeding is not a place to repeat arguments that have already been made to a jury and rejected, then rejected again on appeal. Defendants are barred from obtaining relief in a § 2255 proceeding on claims they could have and indeed did raise on appeal.

A motion to vacate under § 2255 is not a substitute for direct appeal. United States v. Duhart, 511 F.2d 7 (6^th Cir. 1975); DiPiazza v. United States, 471 F.2d 719 (6^th Cir. 1973). Therefore, absent manifest injustice or special circumstances such as a change in the law, § 2255 motions will be dismissed summarily if they raise claims that were or might have been asserted on direct review. Hertz & Liebman Federal Habeas Corpus Practice and Procedure 6^th ed., §41.7(e)(2011), citing Reed v. Farley, 512 U.S. 339, 358 (1994); Withrow v. Williams, 507 U.S. 680, 721 (1993); Davis v. United States, 417 U.S. 333, 342 (197...