United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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).
the two instances Parrish did preserve,  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).
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)).
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.
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.
Rule 32 Proceedings
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.
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)). 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.
petitioned for a writ of certiorari, which the Alabama
Supreme Court denied. Judgment issued on March 11, 2016.
Docs. 18-16 & 18-17.
HABEAS PETITION AND THE PARTIES' ARGUMENTS
raises three 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.
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
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; that the prosecutor s acts fell
well short of compliance with the order not to mention his