United States District Court, W.D. Michigan, Southern Division
Honorable Robert Holmes Bell, Judge
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.
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). 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; 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.)
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
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
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.
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.)
review and applying the AEDPA standards, the Court finds that
all habeas grounds are meritless. Accordingly, the Court will
deny the petition.
and Factual Background
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
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. The children,
except for AB, also testified that Petitioner took nude
pictures of them.
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.
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.
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.
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. (Trial Tr. V at 63-79, ECF
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).
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).
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
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).
Suppression of Petitioner's confession (Issue I)
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.
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.
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.
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)
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,
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).
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.
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 ...