United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT
OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
Phillips, III, (“Petitioner”), confined at the
Newberry Correctional Facility in Newberry, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for assault with intent to do great
bodily harm less than murder, M.C.L.A. § 750.84;
first-degree home invasion, M.C.L.A. § 750.110a(2);
third-degree home invasion, M.C.L.A. § 750.110a(4);
domestic violence, third offense, M.C.L.A. §§
750.81(2) and (4); discharge of a firearm into a building,
M.C.L.A. § 750.234b; and possession of a firearm in the
commission of a felony, M.C.L.A. § 750.227b. For the
reasons stated below, the application for a writ of habeas
corpus is DENIED WITH PREJUDICE.
was convicted by a jury in the Washtenaw County Circuit
Court. This Court recites verbatim the relevant facts relied
upon by the Michigan Court of Appeals, which are presumed
correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009):
The victim, Rose Hicks, dated Phillips for approximately four
years. The two lived together during their relationship, but
were not living together at the time of the incidents. On
November 14, 2008, Hicks was watching television in her
bedroom when she heard her front door forced open. Hicks
testified that Phillips had “kicked down” her
door, entered her home, began hitting her in the face, and
then left. On November 22, 2008, Hicks was in her apartment
with her new boyfriend. Hicks awoke to someone knocking on
her front door. When Hicks looked through the peephole, she
saw Phillips. According to Hicks, Phillips was bleeding and
yelling “Rose, Rose. Help me.” Hicks then heard a
gunshot. Hicks's new boyfriend then grabbed her by the
hand and took her to the balcony to try and escape. Before
Hicks could exit, Phillips grabbed her from behind. Phillips
then pointed a gun at the right side of her neck and
“clicked” it. Hicks testified that she then
turned around, fell on top of Phillips and grabbed the gun.
Phillips was bleeding profusely, and Hicks believed that he
had lost consciousness. The police arrived shortly thereafter
and Phillips was taken to the hospital for treatment of his
People v. Phillips, Nos. 298034, 307770, 2012 WL
3319969, p. 1 (Mich. Ct. App. Aug. 14, 2012).
conviction was affirmed on appeal. Id., lv. den. 493
Mich. 921, 823 N.W.2d 563 (2012).
filed a petition for writ of habeas corpus, which was held in
abeyance to permit petitioner to return to the state courts
to exhaust additional claims. Phillips v. Harry, No.
2:14-CV-11318, 2014 WL 1389325 (E.D. Mich. Apr. 9, 2014).
filed a post-conviction motion for relief from judgment,
which was denied. People v. Phillips, Nos.
08-2139-FH, 08-2145-FC (Washtenaw Cty.Cir.Ct., Apr. 28,
2015). The Michigan appellate courts denied petitioner leave
to appeal. People v. Phillips, No. 331488
(Mich.Ct.App. May 5, 2016); reconsideration den. No.
331488 (Mich.Ct.App. Jul. 21, 2016); lv. den. 500
Mich. 922, 888 N.W.2d 72 (2016).
March 2, 2017, the Court granted the motion to lift the stay,
amended the case caption, and granted the motion to amend the
petition. In his original and amended petitions, petitioner
seeks relief on the following grounds:
I. Petitioner is being unlawfully deprived of his liberty
where he was denied his constitutional right to a fair trial
whereas the trial court abused its discretion in granting the
motion to consolidate the two cases.
II. Petitioner is being unlawfully deprived of his liberty
where he was denied his constitutional right to effective
assistance of trial counsel, therefore a new trial is in
order for trial counsel['s] ineffectiveness at trial.
III. Defendant was incorrectly scored 25 points for offense
variable 3 where no evidence was provided that Robert Kimble
suffered life threatening or permanent incapacitating
injuries as required by MCL 777.33(1)(c), warranting a
re-calculation of the guideline score on OV-3 to 10 points.
IV. Defendant was denied effective assistance of counsel by
his appellate counsel in his one and only appeal of right in
violation of Michigan Constitution 1963, Article 1, §
20; United States Constitution, Sixth Amendment where his
appellate counsel did not raise the above [sentencing
STANDARD OF REVIEW
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his or her claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Claim # 1. The misjoinder claim.
argues that he was denied a fair trial when the judge
consolidated into one trial charges that arose out of two
separate dates and incidents. Petitioner was charged
separately for a series of criminal offenses that occurred on
two different days in November of 2008. The trial judge