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Phillips v. Perry

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

September 28, 2017

MITCH PERRY, Respondent,



         Simon 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.

         I. BACKGROUND

         Petitioner 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 injuries.

People v. Phillips, Nos. 298034, 307770, 2012 WL 3319969, p. 1 (Mich. Ct. App. Aug. 14, 2012).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 493 Mich. 921, 823 N.W.2d 563 (2012).

         Petitioner 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).

         Petitioner 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).

         On 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 guidelines] issue.[1]


         28 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; or
(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.

         A 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).


         A. Claim # 1. The misjoinder claim.

         Petitioner 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 granted ...

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