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Parrish v. Wainwright

United States District Court, S.D. Ohio, Western Division

September 5, 2017

WILLIAM A. PARRISH, JR., Petitioner,
v.
LYNEAL WAINWRIGHT, Warden, Marion Correctional Institution, Respondent.

          MICHAEL R. MERZ, MAGISTRATE JUDGE.

         DECISION AND ENTRY AFFIRMING DECISION AND ORDER OF MAGISTRATE JUDGE DENYING PETITIONER WILLIAM A. PARRISH, JR.'S MOTION FOR EVIDENTIARY HEARING AND FOR APPEAL BOND (DOC. #13), AND OVERRULING PARRISH'S OBJECTIONS THERETO (DOC. #14), EXCEPT AS MODIFIED IN SUPPLEMENTAL OPINION AND MODIFIED ORDER ON RECOMMITTAL (DOC. #16); AFFIRMING IN FULL SUPPLEMENTAL OPINION AND MODIFIED ORDER ON RECOMMITTAL (DOC. #16); AFFIRMING IN FULL DECISION AND ORDER OF MAGISTRATE JUDGE OVERRULING RENEWED MOTION FOR EVIDENTIARY HEARING (DOC. #24), AND OVERRULING PARRISH'S OBJECTIONS THERETO (DOC. #26); OVERRULING ORDER OF MAGISTRATE JUDGE STRIKING OBJECTIONS AS UNTIMELY (DOC. #32), SUSTAINING PARRISH'S OBJECTIONS THERETO (DOC. #33), AND OVERRULING SUPPLEMENTAL OPINION ON STRIKING OBJECTIONS (DOC. #35); ADOPTING IN FULL REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOC. #30), AND OVERRULING PARRISH'S OBJECTIONS THERETO (DOC. #31); MOTION TO DISMISS OF RESPONDENT LYNEAL WAINWRIGHT, WARDEN, MARION CORRECTIONAL INSTITUTION (DOC. #19), IS SUSTAINED, AND PARRISH'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. #3) IS DISMISSED WITH PREJUDICE; PARRISH IS DENIED A CERTIFICATE OF APPEALABILITY, AS NO REASONABLE JURIST WOULD FIND THAT HE MADE A SUBSTANTIAL SHOWING OF A DENIAL OF A CONSTITUTIONAL RIGHT; CERTIFICATION THAT PARRISH SHOULD NOT BE PERMITTED TO PROCEED ON APPEAL IN FORMA PAUPERIS, AS ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS; JUDGMENT TO ENTER IN FAVOR OF THE WARDEN AND AGAINST PARRISH; TERMINATION ENTRY

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE.

         Petitioner William A. Parrish, Jr. ("Petitioner" or "Parrish") filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus ("Petition"), raising thirty-two grounds as to why he believed that he was entitled to relief from the sentence imposed by Montgomery County, Ohio, Court of Common Pleas ("Trial Court") Judge Steven K. Dank of. Doc. #3.[1] Parrish subsequently filed motions for an evidentiary hearing with respect to his claim that the record submitted to this Court was inaccurate and incomplete, Doc. #12, 23; conversely, the Respondent, Lyneal Wainwright, Warden, Marion Correctional Institution ("Respondent") moved to dismiss Parrish's Petition. Doc. #19. Pending before the Court, pursuant to Rule 72(a), are:

1. Magistrate Judge Michael R. Merz's January 18, 2017, Decision and Order Denying Petitioner's Motion for Evidentiary Hearing and for Appeal Bond, Doc. #13, Parrish's Objections to the Order, Doc. #14, and the Magistrate Judge's February 9, 2017, Supplemental Opinion and Modified Order on Recommittal, Doc. #16, to which Parrish filed no objections;
2. The Magistrate Judge's April 19, 2017, Decision and Order denying Parrish's Renewed Motion for Evidentiary Hearing and Appeal Bond, Doc. #24, and Parrish's Objections to the Order, Doc. #26; and
3. The Magistrate Judge's June 19, 2017, Order Striking as Untimely Parrish's Objections to the below-described Report and Recommendations, Doc. #32, Parrish's Objections to that Order, Doc. #33, and the Magistrate Judge's Supplemental Opinion, Doc. #35, to which Parrish filed no objections.

         Pending before the Court, pursuant to Rule 72(b), are: the Magistrate Judge's May 23, 2017, Report and Recommendations regarding Respondent's Motion to Dismiss Parrish's Petition, Doc. #30, and Parrish's Objections to said judicial filing. Doc. #31.

         Based upon the reasoning and citations set forth in the Orders and in the Reports and Recommendations, as well as upon a thorough de novo review of Parrish's Objections to said judicial filings, and of the applicable law, this Court AFFIRMS IN PART AND OVERRULES IN PART the Magistrate Judge's January 18, 2017, Decision and Order, Doc. #13, overruling it only to the extent that it was modified by the Supplemental Order. The Court SUSTAINS Parrish's Objections to said judicial filing, Doc. #14, only to the extent that the Initial Decision and Order was modified by the Supplemental Order, and OVERRULES the Objections to said judicial filing in all other respects. The Court AFFIRMS IN FULL the Magistrate Judge's February 9, 2017, Supplemental Decision and Order, Doc. #16, and April 19, 2017, Decision and Order, Doc. #24, and OVERRULES Parrish's Objections to the latter judicial filing. Doc. #26. The Court REJECTS the Magistrate Judge's June 19, 2017, Order Striking Objections, Doc. #32, SUSTAINS Parrish's Objections thereto, Doc. #33, and REJECTS the July 7, 2017, Supplemental Opinion. Doc. #35.

         Further, the Court ADOPTS IN FULL the Report and Recommendations of the Magistrate Judge, Doc. #30, and OVERRULES Parrish's Objections thereto. Doc. #31. Respondent's Motion to Dismiss, Doc. #19, is SUSTAINED, and Parrish's Petition, Doc. #3, is DISMISSED WITH PREJUDICE. As no reasonable jurist could find that Parrish "has made a substantial showing of the denial of a constitutional right, " 28 U.S.C. § 2253(c)(2), he is DENIED a Certificate of Appeal ability as to all thirty-two grounds for relief. Finally, as any appeal would be objectively frivolous, this Court certifies to the U.S. Court of Appeals for the Sixth Circuit that Parrish should not be permitted to proceed on any appeal in forma pauperis.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. State Court Proceedings

         In September 2011, Parrish was indicted by the Montgomery County Grand Jury on five felony counts. Doc. #18, PAGEID #218-21. Montgomery County, Ohio, Court of Common Pleas ("Trial Court") Judge Steven K. Dankof appointed Eugene Robinson ("Robinson") to represent Plaintiff. Id., PAGEID #223, 225. Robinson subsequently withdrew, and on December 1, 2011, Judge Dankof appointed Jay Adams ("Adams") to represent Parrish. Id., PAGEID #228. Parrish filed a motion to dismiss Adams as counsel, and on May 4, 2012, the Trial Court permitted Adams "to withdraw and appointed new counsel, Lucas Wilder [('Wilder')]." Doc. #19, PAGEID #1406 (citing Doc. #18, PAGEID #247-51). Parrish subsequently filed a motion to dismiss Wilder and represent himself at trial, which the State Court granted after a May 24, 2012, hearing in which it found that Parrish's waiver of his right to counsel was knowing and voluntary. Doc. #18, PAGEID #259-60; Doc. #18-1, PAGEID #580-644. Wilder was appointed as standby counsel for trial. Doc. #18-1, PAGEID #644. On or about June 29, 2012, after a jury trial at which Parrish represented himself pro se, Parrish was convicted on all five counts, and was sentenced to twenty-four years in prison by Judge Dankof. Doc. #3, PAGEID #55.

         On July 17, 2012, Wilder, on behalf of Parrish, filed a timely notice of appeal to the Ohio Second District Court of Appeals ("Appellate Court" or "Second District"). Doc. #18, PAGEID #286. The Appellate Court appointed J. David Turner ("Turner") to represent Parrish on direct appeal. Id., PAGEID #490-91. On November 13, 2012, Turner, at Parrish's request, moved to withdraw as counsel. Id., PAGEID #288. The Appellate Court granted Turner's motion, and appointed Melissa Prendergast ("Prendergast") of the Office of the Ohio Public Defender to represent Parrish on direct appeal. Id., PAGEID #290, 293.[2] On May 20, 2013, Prendergast, at Parrish's request, filed a motion to withdraw, which the Appellate Court sustained. Id., PAGEID #298, 305). Parrish filed a motion to proceed pro se, which the Appellate Court sustained on December 6, 2013. In so sustaining, the Appellate Court ordered the Trial Court to provide Parrish with a CD-ROM containing the transcripts of the record that would be considered on appeal. Id., PAGEID #309-10.

         On March 25, 2014, Parrish moved that the Appellate Court appoint Wilder as his appellate counsel, Doc. #18, PAGEID #317, which the Court denied and, instead, appointed Elizabeth Scott ("Scott") as counsel. Id., PAGEID #318. On May 30, 2014, the State moved to dismiss Parrish's appeal for failure to file an opening brief within the specified time. Id., PAGEID #321-22. Parrish, via Scott, moved for an extension of time to file his opening brief, which the Appellate Court sustained. Id., PAGEID #323, 327. On June 10, 2014, citing a breakdown in communication and Parrish's failure to cooperate with the appeal process, Scott filed a motion to withdraw as counsel. Id., PAGEID #325. The Appellate Court sustained Scott's motion and appointed Anthony Cicero ("Cicero") to represent Parrish. Id., PAGEID #328-32. On August 19, 2014, the State again moved to dismiss Parrish's appeal for failing to file an opening brief, and Parrish cross-moved for an extension of time to file an appeal brief. Id., PAGEID #335-38. The Appellate Court sustained Parrish's motion and overruled the motion of the State. Id., PAGEID #339.

         On January 7, 2015, the State filed its third motion to dismiss for failure to file an opening brief. On January 15, 2015, Parrish, without assistance of counsel, filed a motion to vacate his conviction, and on January 23, 2015, Cicero moved to withdraw as counsel, citing a conflict of interest. Doc. #18, PAGEID #356, 366, 384. On February 25, 2015, the Appellate Court sustained Cicero's motion to withdraw, overruled without prejudice the State's motion to dismiss, overruled Parrish's motion to vacate, and ordered Parrish to file an opening brief within twenty days. Id., PAGEID #387-88. On March 6, 2015, Parrish filed a pro se motion to correct the record and for a new trial, claiming that the copy of the transcript of record that he had received was inaccurate and incomplete. Parrish argued that the testimony of a Laddie Mae Jackson ("Jackson") was improperly included in the transcript, and that jury instructions were improperly included in the transcript, despite never being given to jurors prior to deliberations. Id., PAGEID #390. Finally, he claimed that "the transcripts have a total of 476 large gaps that omit important objections and rulings . . . [and] the certification attached to the Appellant's transcripts ha[s] the wrong name and case number on it." Id. On March 19, 2015, the State again moved to dismiss Parrish's appeal, id., PAGEID #396; on April 9, 2015, the Appellate Court overruled both motions in full, but remanded the case to the Trial Court "for the limited purpose of considering the record omissions and certification issue raised by Parrish." Id., PAGEID #403.

         Parrish refiled his motion to correct the record and for a new trial with the Trial Court; in response, the Trial Court ordered a full transcript prepared. Doc. #18, PAGEID #405, 412. Judge Dankof "specifically direct[ed] the [reporting] company to use every available channel to review inaudible portions of the recordings. AVTranz submitted the transcript, and it was filed ... on June 30, 2015." Id., PAGEID #438. The Trial Court overruled Parrish's motion for a new trial, and noted that his claims about Ms. Jackson's testimony, the inclusion of jury instructions, and the "476 large gaps" in the transcript were either procedurally defaulted or belied by the transcript itself. Further, the Trial Court noted that the error on the transcript's certification page had already been corrected. Id., PAGEID #413. Simultaneously, in the Appellate Court, Parrish moved to: strike the amended transcript; correct the sentencing entry; and vacate his convictions. Id., PAGEID #415-37. On July 17, 2015, the Appellate Court overruled all three motions, and again directed Parrish to file an opening brief within twenty days. Id., PAGEID #442. That same day, Parrish moved to strike the amended transcript and for a new trial. Id., PAGEID #444. In his motion, Parrish argued that he could not file a proper appellate brief because he had not had a chance to review the modified transcript, and thus, could not determine if it contained the errors and omissions that he had identified in the original transcript. Id., PAGEID #446-47.

         On August 17, 2015, the Appellate Court overruled Parrish's motion, holding that he "is not entitled to a personal copy of the transcript. As this [C]ourt has previously informed [Parrish], the Supreme Court of Ohio has held that by choosing to proceed without the assistance of counsel, he has relinquished his ability to gain easy access to the transcript[, ]" and an indigent defendant's only right with respect to a transcript is that a copy be "forwarded to the clerk of the [A]ppellate [C]ourt for use in a direct appeal. [Parrish] acknowledges [that] this has been done here." Id., PAGEID #469. The Appellate Court again ordered Parrish to file an opening brief within twenty days. Id., PAGEID #470.

         On September 22, 2015, the State moved to dismiss Parrish's appeal for failure to file an opening brief, and on September 24, 2015, the Appellate Court ordered Parrish to file a brief or show cause as to why his appeal should not be dismissed. Doc. #18, PAGEID #471-74. On October 8, 2015, Parrish responded to the show cause order, arguing once again that he had not received an accurate copy of the trial transcript, and that the state's failure to provide him with such a copy free of charge violated his Constitutional rights. Id., PAGEID #475-76. The Appellate Court was not swayed by Parrish's argument, and dismissed his appeal with prejudice on November 19, 2015. Id., PAGEID #477. Parrish did not seek reconsideration in the Appellate ...


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