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Parrish v. Davenport

United States District Court, M.D. Alabama, Northern Division

December 12, 2018

PERRY DEMON PARRISH, #133200, Petitioner,
v.
CARTER DAVENPORT, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         Petitioner Perry Demon Parrish, an inmate of the Alabama Department of Corrections, filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his convictions and sentences in the Circuit Court for Covington County, Alabama, on seven counts of first-degree sodomy, six counts of first-degree sexual abuse, and four counts of sexual abuse of a child under 12 years of age. Docs. 1 & 10. For the following reasons, the court recommends that the petition be denied and the case dismissed.

         I. STATE PROCEEDINGS

         After the jury found Parrish guilty of the charges, the state circuit court sentenced him to life in prison as a habitual offender for each of the convictions. The court ordered all of the sodomy counts to be served concurrently with one another, all the sexual abuse counts to be served concurrently with one another, and all the sexual abuse with a child counts to be served concurrently with one another. Docs. 18-6 at 13-14 & 18-20 at 28-30.

         A. Direct Appeal

         Parrish appealed, raising two primary issues. First, he argued that the circuit court's curative instructions could not repair the prejudice he suffered when the jury repeatedly heard testimony about his prior bad acts in violation of the court's order in limine and Alabama Rule of Evidence 404(b). Doc. 18-7 at 15-23. Second, he argued that “the prosecutor's professed compliance with the court's order to not mention Perry Parrish's prior bad acts is well short of compliance and is the source of irreparable harm” to him. Doc. 18-7 at 23-26.

         The Alabama Court of Criminal Appeals held that Parrish failed to preserve for appellate review four of the six challenges to admission of testimony relating to his prior bad acts. Parrish v. State, No. CR-09-1101 (Ala.Crim.App.Apr. 15, 2011), Doc. 18-9 at 3. Under the law in Alabama, it explained that

[t]o preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained. Although Parrish filed a motion for a new trial in which he challenged the testimony of the witnesses that he now challenges on appeal, Parrish's motion for new trial was not timely and did not serve to preserve his claims on appeal. The grounds urged for a new trial must ordinarily be preserved at trial by timely and sufficient objections. [A] motion for a new trial . . . is not sufficient to preserve the issue where no timely objection was made at the time the evidence was offered and admitted. Because Parrish did not object on four of the six occasions when witnesses testified regarding his prior bad acts, he failed to preserve for appellate review his challenges to those instances of alleged error.

Id. (citations and internal quotations omitted).

         As for the two instances Parrish did preserve, [1] the Court of Criminal Appeals held that the circuit court did not error in denying Parrish's motion for a mistrial. Id. at 7. Under applicable state law, a trial court has discretion to deny a motion for mistrial, “and the court's ruling on a motion for a mistrial will not be overturned absent a manifest abuse of that discretion.” Id. (quoting Peoples v. State, 951 So.2d 755, 762 (Ala.Crim.App.2006). The Court of Criminal Appeals reasoned that “[a]ny error in the admission of the improper testimony was promptly eradicated by the circuit court's curative instructions.” Id. at 7. Furthermore, it held, the circuit court polled the jurors to determine if they could follow the court's instructions to disregard statements. Id. at 8. Finding no evidence that the jury could not follow the court's instructions, the Court of Criminal Appeals presumed, as required by Alabama law, that the jury followed the court's instructions. Id. (citations omitted).

         The Court of Criminal Appeals also held that the circuit court did not abuse its discretion in denying Parrish's motion for a new trial under Alabama state law. Id. at 8 (citing, inter alia, Knight v. State, 710 So.2d 511, 513 (Ala.Crim.App.1997)). It held that “the record indicate[d] that the prosecutor did not intentionally elicit testimony from the witnesses regarding Parrish's prior criminal conduct.” Id. at 8-9 (citing Ex parte Sparks, 730 So.2d 113 (Ala. 1998)).

         In his second primary issue for appeal, Parrish questioned the prosecutor's diligence in instructing witnesses not to speak of the prior bad acts, particularly because the episodes recurred during trial. Doc. 18-7 at 23-26. The Court of Criminal Appeals held that Parrish raised the issue for the first time on appeal and therefore failed to preserve the issue for appeal under Alabama law. Doc. 18-9 at 9 (citing, inter alia, Ex parte Coulliette, 857 So.2d 793, 794 (Ala. 2003)). The Court of Criminal Appeals further notes that, even if preserved, the argument was “disingenuous, at best.” Id. It pointed out that Parrish made a motion before trial to exclude evidence of his prior convictions for burglary, grand larceny, and sexual abuse. The prosecutor said he did not intend to elicit testimony about these acts and instructed his witnesses not to mention Parrish's criminal history. Id. The Court of Criminal Appeals further observed that defense counsel at trial said the prosecutor “tried a very clean case” and several of the prosecutor's witnesses “inadvertently said some things because they are not professionals, and they don't understand where that line is.” Id.

         The Court of Criminal Appeals denied Parrish's application for rehearing. Doc. 18-10. The Alabama Supreme Court denied further review. A certificate of judgment issued on August 5, 2011. Docs. 18-11 & 18-12.

         B. Rule 32 Proceedings

         Parrish sought post-conviction relief under Alabama Rule of Criminal Procedure 32. Doc. 18-13 at 10-24. The circuit court summarily dismissed Parrish's claims of prosecutorial misconduct and newly discovered evidence. Doc. 18-13 at 36-37. Parrish also argued his counsel provided ineffective assistance by failing to object to the admission of prior bad acts evidence on multiple occasions. After an evidentiary hearing on the remaining claim of constitutionally ineffective assistance of counsel, the circuit court dismissed it. Docs. 18-13 at 65-76 & 18-14.

         Parrish appealed only the prosecutorial misconduct and ineffective assistance of counsel claims. Doc. 18-18 at 6. On the prosecutorial misconduct claim, the Court of Criminal Appeals observed that, before the circuit court, Parrish “failed to cite any authority except a miscited reference to Rule 8.4 of the Alabama Rules of Professional Conduct.” Doc. 18-15 at 8. It further observed Parrish simply quoted isolated instances of alleged prosecutorial misconduct from the trial record without placing the testimony in context or arguing why the selections constituted misconduct. Doc. 18-15 at 8. It stated that, “[a]lthough not a basis for the circuit court's dismissal, a simple review of Parrish's claims of prosecutorial misconduct . . . convinces this court that he failed to meet his burden to plead the full factual basis for his claim.” Doc. 18-15 at 9 (citing, inter alia, Ala. R. Crim. P. 32.3 & 32.6(b)).[2] On the various ineffective assistance of counsel claims brought under the Sixth Amendment to the federal Constitution, the Court of Criminal Appeals held the circuit court's findings were supported by the record from the evidentiary hearing. Doc. 18-15 at 11. It observed that counsel could have objected to each instance of alleged improper testimony, but counsel made reasonable, strategic choices not to overemphasize before the jury some instances of Parrish's prior bad acts. Doc. 18-15 at 11. It affirmed the circuit court's ruling that Parrish failed to show that his counsel was constitutionally ineffective. Doc. 18-15 at 11.

         Parrish petitioned for a writ of certiorari, which the Alabama Supreme Court denied. Judgment issued on March 11, 2016. Docs. 18-16 & 18-17.

         II. HABEAS PETITION AND THE PARTIES' ARGUMENTS

         Parrish raises three[3] principal claims for § 2254 relief Docs. 1 & 10. First, he seeks relief based on the prejudicial effect on the jury of the prior bad acts evidence. Doc. 1 at 6-8. Second, he argues that the prosecutor engaged in misconduct. Doc. 1 at 8-10. Third, he argues that he received ineffective assistance of counsel in violation of the state constitution and the Fifth Amendment to the United States Constitution. Doc. 1 at 10-12.

         Respondents admit that Parrish's petition is timely. Doc. 15 at 8. In opposition to the substance of his claims, they first argue that Parrish cannot obtain federal review of four of the six claimed erroneous admissions of evidence because he defaulted them on direct appeal in state court pursuant to an adequate and independent state procedural rule. Doc. 15 at 11-12. Respondents further argue that on direct appeal Parrish failed to preserve under state rules his claim that the prosecutor was not diligent in preventing state witnesses from testifying about his prior criminal conduct, and the issue is therefore defaulted for purposes of habeas review. Doc. 15 at 12-14. Respondents argue the state court's alternative ruling on the merits of the prosecutorial misconduct claim did not waive its reliance on the procedural default reasoning. Doc. 15 at 14. Respondents argue Parrish cannot show cause and prejudice for the default of his claims or that a fundamental miscarriage of justice would result if this court does not review his procedurally defaulted claims. Doc. 15 at 14-16. Second, Respondents argue that Parrish's two preserved claims addressed on direct appeal regarding the admission of prejudicial testimony, as well as his claim regarding prosecutorial misconduct, were raised in state court as only state-law claims and not as federal claims, and therefore this court cannot review them. Doc. 15 at 16-19. Finally, Respondents argue that the state-court determination of Parrish's ineffective assistance of trial counsel claims was not contrary to, or an unreasonable application of, clearly established federal law. Doc. 15 at 20-24.

         This court entered an order giving Parrish an opportunity to respond to the answer, and advising Parrish of the constraints that 28 U.S.C. § 2254(d) places on federal courts to grant relief, including procedural default of federal claims, as well as the ways to overcome default. Doc. 17. Parrish responded, but he did not address the procedural default arguments. Doc. 20. He did not address the argument that he raised only state-law claims on direct appeal. Parrish instead reiterated his arguments that the curative instructions were insufficient;[4] that the prosecutor s acts fell well short of compliance with the order not to mention his ...


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