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Phillips v. Prelesnik

United States District Court, W.D. Michigan, Southern Division

January 26, 2017

CHARLES PHILLIPS, Petitioner,
v.
JOHN PRELESNIK, Respondent.

          OPINION

          Honorable Robert Holmes Bell, Judge

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Over a period of several days during November of 2009, a Genesee County Circuit Court jury heard testimony on two consolidated cases involving criminal sexual conduct (CSC) charges against Petitioner Charles Phillips. In Case No. 09-025251-FC, Petitioner was charged with six counts of first-degree CSC and two counts of second degree CSC, all relating to one victim under the age of 13 years: DL. In Case No. 09-025421-FC, Petitioner was charged with two counts of first-degree CSC, three counts of second-degree CSC, one count of accosting a child for immoral purposes, and one count of producing child sexually abusive material, all relating to three victims, brothers, under the age of 13 years: AB, TB, and ZB.

         On December 1, 2009, after deliberating for less than three hours, the jury returned its verdict. Petitioner was convicted of six counts of first-degree CSC, Mich. Comp. Laws § 750.520b(1)(a); five counts of second-degree CSC, Mich. Comp. Laws § 750.520c(1)(a); one count of accosting a child for immoral purposes, Mich. Comp. Laws § 750.145a; and one count of producing child sexually abusive material, Mich. Comp. Laws § 750.145c(2).[1] On January 13, 2010, Petitioner was sentenced to terms of imprisonment as follows: (A) in Case No. 09-025251-FC, sentences of life imprisonment on first-degree CSC counts I and III; sentences of 40 years to 66 years, 8 months on first-degree CSC counts IV and VI; and sentences of 6 years, 3 months to 15 years on second-degree CSC counts VII and VIII; all of these sentences to be served consecutive to each other;[2] and (B) in Case No. 09-025421-FC, a sentence of life imprisonment on first-degree CSC count I; a sentence of 50 to 75 years on first-degree CSC count III; sentences of 6 years, 3 months to 15 years on second-degree CSC counts II, IV, and VII; a sentence of 2 to 4 years on accosting a child for immoral purposes Count VI; and a sentence of 6 years, 3 months to 20 years on producing child sexually abusive material Count V; all of these sentences to be served concurrently with each other and the sentences in Case No. 09-025251-FC. The trial court expressed its sentencing purpose: “It is my intention that you are sentenced to prison for so long that you'll die there . . . .” (Sentence Tr. at 23, ECF No. 26.)[3]

         In his pro se amended petition Petitioner raises seven issues:

I. The third interagation [sic] statement should have been Suppresed [sic] (confession) because the miranda warnings received two days prior were stale by the third interrogation was performed and due to his condition.
II. Trial court allowed a non victim to allocate [sic] at sentencing where he encouraged the court to sentence on allegations [that were not part of the case] and trial counsel failed to object.
III. The Petitioner was not afforded with effective assisstance [sic] of counsel by his trial attorney for numerous issues.
IV. Petitioner[']s trial counsel failed to request or present any expert witnesses, such testimony if provided would have changed the verdict.
V. Trial counsel faile[d] to file Petitioner[']s requested interlocatory [sic] appeal, denial of counsel at a critical stage & conflict of interest.
VI. Trial attorney failed to investigate and or call witnesses provided by Petitioner for his defense, given prior to trial.
VII. Petitioner claims trial court cannot set aside a valid or partial valid sentence while the Petitioner left the court building awaiting execution.

(Am. Pet., ECF No. 5, Page ID.299-310.) Petitioner raised all of these issues in the briefs he filed in the Michigan Court of Appeals. (Def.-Appellant's Br.; Def.-Appellant's Supplemental Br., ECF No. 28.) In an unpublished opinion issued September 20, 2011, the court of appeals affirmed the convictions. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the issues he had raised in the court of appeals. (Appl. for Leave to Appeal, ECF No. 29.) The supreme court denied leave to appeal on March 5, 2012. People v. Phillips, 808 N.W.2d 782 (Mich. 2012).

         Petitioner filed his initial petition on June 5, 2013. He filed his amended petition on July 15, 2013. On January 24, 2014, Respondent filed an answer to the petition, (ECF No. 12), which addressed all of the issues in the amended petition. Respondent's answer argues that the habeas petition should be denied because the grounds upon which it is based are without merit. On February 11, 2014, Respondent filed the state-court record, pursuant to Rule 5, Rules Governing § 2254 Cases. (ECF Nos. 13-29.)

         Upon review and applying the AEDPA standards, the Court finds that all habeas grounds are meritless. Accordingly, the Court will deny the petition.

         Procedural and Factual Background

         Petitioner's habeas challenges relate to matters before trial (the Walker hearing, Issue I), matters after trial (sentencing, Issues II and VII), and actions Petitioner's counsel failed to take throughout the proceedings (Issues III-VI). An in-depth recounting of the trial testimony of each witness is not necessary to resolve Petitioner's claims.

         At Petitioner's trial, the prosecutor introduced testimony from fifteen witnesses. Five of the witnesses were children, the four victims in the charged crimes (DL, AB, TB, and ZB) plus another victim (CA). The children provided similar testimony: Petitioner had, on multiple occasions, either anally penetrated, performed oral sex, and/or masturbated them. The children were not entirely clear with respect to the dates of these events, with one notable exception. Each child recalled his participation with Petitioner in a sleepover on the occasion of Petitioner's son's birthday party that resulted in a pedophilic orgy in a tent in Petitioner's mother's backyard.[4] The children, except for AB, also testified that Petitioner took nude pictures of them.[5]

         The parents of AB, TB, and ZB testified, as did the mother of DL. The individual to whom TB initially reported the crimes testified. The forensic interviewers of the victims testified. The police officer who initially responded to the report testified. Detective Todd Gilbert, the lead investigator, testified as well.

         The testimony of Detective Gilbert warrants closer scrutiny as it bears directly on Petitioner's motion to suppress his confession. Detective Gilbert conducted several interviews with Petitioner. Detective Gilbert conducted the first interview the night of February 2, 2009, after Petitioner was arrested. (Walker Hr'g Tr. at 5-20, ECF No. 21; Trial Tr. III at 116-151, ECF No. 22.) Petitioner participated in the second interview on February 3, 2009, at approximately 9:30 a.m. (Walker Hr'g Tr. at 21-27, ECF No. 21; Trial Tr. III at 152-165, ECF No. 22.) Detective Gilbert interviewed Petitioner for the third and final time during the afternoon of February 4. (Walker Hr'g Tr. at 27-39, ECF No. 21; Trial Tr. III at 166-167, ECF No. 22; Trial Tr. IV at 4-55, ECF No. 23.) During the final interview Petitioner acknowledged that he had performed oral sex on and masturbated TB and AB and could not rule out the possibility that he had done the same with others.

         The final witness for the prosecutor was William McCoy, a computer forensic specialist with the Grand Blanc Township Police Department. He testified regarding incriminatory images and emails he found on Petitioner's laptop, cell phone, and camera.

         The defense offered the testimony of two witnesses: Petitioner's mother and Petitioner's son. Petitioner's mother testified that she neither saw nor heard anything inappropriate in her backyard the night of the birthday party sleepover. (Trial Tr. V at 51-62, ECF No. 24.) Petitioner's son testified that his father never did any of the things the victims claimed.[6] (Trial Tr. V at 63-79, ECF No. 24.)

         Standard of Review

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation marks omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state- court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S.__, 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         Discussion

         I. Suppression of Petitioner's confession (Issue I)

         Petitioner contends that his confession, introduced through the testimony of Detective Gilbert, was involuntary because the Miranda warnings were stale and he was physically and psychologically too vulnerable. The Michigan Court of Appeals described Petitioner's position as follows:

Defendant first argues that the trial court erroneously denied his motion to suppress statements that he made during a third custodial interview, in which he admitted to sexually abusing at least two of the child victims and admitted that it was possible that he had sexually abused other children as well. Defendant argues that he was not properly advised of his constitutional rights before giving the statements, and that the statements were involuntary. The trial court denied defendant's motion after conducting an evidentiary hearing. We find no error.

Phillips, 2011 WL 4375110 at *1.

         The Fifth Amendment of the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that, in order to protect an individual's Fifth Amendment privilege against self incrimination, when an individual is in custody, law enforcement officials must warn the suspect before his interrogation begins of his right to remain silent, that any statement may be used against him, and that he has the right to retained or appointed counsel. Id. at 478-79; see also Dickerson v. United States, 530 U.S. 428, 435 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). Under Miranda, evidence of a defendant's custodial statement may only be introduced as evidence of guilt at trial if the defendant was first given such warnings. Id. at 479.

         Here, Petitioner claims his custodial statement should have been excluded because he was effectively not provided Miranda warnings prior to his third custodial statement which was incriminatory.

         Whether or not Petitioner received the warnings is critical. “[T]he ready ability to obtain uncoerced confessions is not an evil but an unmitigated good . . . . Admissions of guilt resulting from valid Miranda waivers are more than merely desirable; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law.” Texas v. Cobb, 121 S.Ct. 1335, 1342 (2001) (quotation and citation omitted). The cases in which a defendant can make a colorable argument that a confession was compelled despite the fact that law enforcement authorities adhered to Miranda are rare. Dickerson v. United States, 530 U.S. 428, 444 (2000) (citation omitted).

         As part and parcel of Petitioner's argument that the police failed to properly provide the Miranda warnings, he also argues his confession was coerced. When a criminal defendant claims that his confession was rendered involuntary by police coercion, the court must inquire whether, considering the totality of the circumstances, the conduct of law enforcement officials overbore the will of the accused. See Mincey v. Arizona, 437 U.S. 385 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). A suspect's state of mind, standing alone, cannot render a statement involuntary. Rather, coercive police conduct is a necessary prerequisite to the conclusion that a confession was involuntary, and the defendant must establish a causal link between the coercive conduct and the confession. See Colorado v. Connelly, 479 U.S. 157, 163-67 (1986).

         Typically, findings of coercive police conduct involve brutality or threats of physical coercion. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287-88 (1991) (threats of physical violence); Greenwald v. Wisconsin, 390 U.S. 519 (1968) (defendant interrogated for eighteen hours without food or sleep while on medication); Beecher v. Alabama, 389 U.S. 35 (1967) (gun held to head of wounded suspect to extract confession); Cooper v. Scroggy, 845 F.2d 1385 (6th Cir. 1988) (officer struck defendant, failed to take steps to change coercive environment, and other detective threatened defendant). Nevertheless, a confession may be rendered involuntary if it is the product of psychological pressure or coercion sufficient to overbear the will of the accused. See Fulminante, 499 U.S. at 287-88. Among the circumstances to be reviewed by the habeas court are “the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition and mental health.” Withrow v. Williams, 507 U.S. 680, 693-94 (1993) (citations omitted).

         Petitioner's arguments that he was not effectively provided the Miranda warnings and that his confession was rendered in a coercive environment are discussed below. A. The timeliness of the Miranda warnings In assessing whether Petitioner's confession was admissible the Michigan Court of Appeals described the standard as follows:

Statements of an accused made while in custody are not admissible unless the accused voluntarily, knowingly, and intelligently waived his Fifth Amendment rights. People v. Harris, 261 Mich.App. 44, 55; 680 N.W.2d 17 (2004). The prosecutor must establish a valid waiver by a preponderance of the evidence. Id. Before a custodial statement may be used against a defendant, he must be warned of his right to remain silent, that his statements could be used against him, and that he had the right to retained or appointed counsel before being questioned. Id.

Phillips, 2011 WL 4375110 at *2. Although the Michigan Court of Appeals relied upon state cases in reviewing this issue, the authorities were wholly consistent with the clearly ...


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