Phillips v. Price et al (INMATE 2)(STAYED)

Filing 38

ORDER directing that, following an independent evaluation and de novo review of the file in this case, Petitioner's objections are OVERRULED, the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED that this petitio n for habeas corpus relief is DENIED, and this case is DISMISSED with prejudice, as further set out. Signed by Honorable Judge W. Harold Albritton, III on April 22, 2015. (scn, ) (Main Document 38 replaced on 4/22/2015 to correct case style) (scn, ).

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

MICHAEL PHILLIPS, #256 638,
Petitioner,
vs.
WARDEN CHERYL PRICE, et al.,
Respondents.

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CASE NO. 3:12-cv-234-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #32),
entered on March 4, 2015, and Petitioner’s Objection (Doc. #35), filed on April 2, 2015.
Following an independent evaluation and de novo review of the file in this case, the court
finds as follows:
This is a petition for writ of habeas corpus under 28 U.S.C. § 2254 in which the
Petitioner, an Alabama inmate, challenges his state court conviction of capital murder and
sentence to life imprisonment without the possibility of parole. The Magistrate Judge
recommended that the petition be denied, and the Petitioner has objected to that
Recommendation.
Petitioner’s first objection is directed to the Magistrate Judge's resolution of his claims
number 1 & 9 concerning trial court error in failing to give a jury instruction on felony murder.
In the Recommendation, the Magistrate Judge found that the Alabama Court of Criminal
Appeals’ determination that the trial judge did not err in failing to instruct the jury on felony
murder as a lesser included offense, where it gave jury charges on the lesser included offenses of

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intentional murder and robbery in the first degree, was neither contrary to, nor an unreasonable
application of, Supreme Court precedent. Petitioner attempts to use excerpts from the testimony
of various State witnesses to support his contention that where the bulk of the evidence
submitted at trial was circumstantial and pointed to someone other than Petitioner as having
committed the crimes for which he was convicted, an instruction on felony murder was
appropriate to give the jury "an alternative to draw from the theory of evidence." Doc. No. 35 at
6. As explained in the Recommendation, the trial court instructed the jury on the lesser included
non-capital offenses of intentional murder and robbery in the first degree finding the evidence
supported no finding of felony murder, and the appellate court agreed, finding no evidence that
the victim’s murder was accidental or unintended and, therefore, determined that the trial court
had not committed error in refusing to give a felony murder instruction. The court agrees with
the Magistrate Judge’s finding that the state court's determination was neither contrary to, nor an
unreasonable application of Supreme Court precedent. Accordingly, Petitioner's objection to the
Magistrate Judge's findings and conclusions regarding Grounds 1 and 9 is due to be overruled.
Petitioner next objects to the Magistrate Judge’s resolution of claims numbered 2, 6, & 13
regarding the sufficiency of the evidence, trial court error in denying his motion for judgment of
acquittal, and trial counsel's ineffectiveness in this regard. The Magistrate Judge found that the
state appellate court reviewed the evidence in the record and rejected Petitioner’s argument that
the trial court erroneously denied his motion for judgment of acquittal where the evidence at trial
was insufficient to support his capital murder conviction because most of the evidence against
him was circumstantial and the State failed to prove he had a particularized intent to kill the
victim or that he sanctioned or facilitated the killing during a robbery finding that the State
presented sufficient evidence, both direct and circumstantial, that strongly suggested Petitioner

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was present when the victim was robbed and killed and that Petitioner participated in the
offenses. Petitioner conclusorily objects claiming no such direct or circumstantial evidence
pointed to him and the only evidence of him being in the State of Alabama had him located two
miles from the incident. He further argues "other evidence" reflected that State's witnesses who
testified at trial possessed firearms prior to the incident and that several State's witnesses
recanted their statements and gave tainted and perjured testimony. Petitioner must "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 ... beyond any possibility for fair-minded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011). Petitioner's objection, based on the same
arguments presented in his habeas petition, fail to meet his burden of proving "by clear and
convincing evidence" that the state court's findings were incorrect. 28 U.S.C. § 2254(e)(1).
Petitioner's objection to the conclusions in the Recommendation regarding Grounds 2 and 6 are,
therefore, without merit and due to be overruled.
In Ground 13 Petitioner alleged that trial counsel performed deficiently by failing to
object to the trial court’s decision to deny the motion for judgment of acquittal. The Magistrate
Judge rejected relief on this claim finding that because of his determination regarding
Petitioner’s substantive challenge to the sufficiency of the evidence used to convict him, even if
Petitioner could show that trial counsels’ conduct was objectively unreasonable, he had failed to
establish prejudice as he had not demonstrated that, but for counsels’ alleged deficient
performance, the result of his trial proceedings would have been different. Petitioner raises no
specific objection to this analysis of his ineffective assistance claim and simply reiterates that
trial counsel was ineffective in failing to lodge an objection to the trial court's ruling on his
request for a judgment of acquittal. The court agrees, however, that Petitioner has not shown

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that he was prejudiced by trial counsel's failure to assert a meritless objection. See Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir.2000) (“To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable. . . [T]he issue is not what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’ ”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous
claim). As Plaintiff has failed to identify error in the Magistrate Judge's determination regarding
Ground 13, his objection is due to be overruled.
In Ground Ten Petitioner assigned as error trial counsels' ineffectiveness in not allowing
him to testify nor explaining to him his right to do so. In his objection, Petitioner challenges the
Magistrate Judge's determination that he defaulted this claim. The default of this claim occurred
because Petitioner failed to timely appeal his first Rule 32 petition. The Magistrate Judge,
therefore, determined that Ground Ten was defaulted and Petitioner failed to show cause to
excuse the procedural default of this challenge to counsel's performance because he had not
established that his underlying ineffective assistance claim was “substantial” under Martinez v.
Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1318-19 (2012). Petitioner's objection to the Magistrate
Judge's conclusion that Ground Ten is defaulted fails to assert any specific basis for undermining
the Magistrate Judge's resolution of this claim, with which the court agrees, and it, therefore, is
due to be overruled.
Petitioner objects to the Magistrate Judge's resolution of Grounds 4, 5, 11 & 12 regarding
error by the trial court and trial counsel over continuances of trial in violation of the IADA. The
Magistrate Judge determined that Petitioner's allegations where they were couched in terms of
trial court error were defaulted and in terms of trial counsels' ineffectiveness, Petitioner had

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failed to meet the Strickland standard. Petitioner's objection to this determination on these claims
is a rehash of the arguments raised in the petition and addressed in the Recommendation. The
court finds this objection to be without merit, and it is due to be overruled.
Petitioner objects to the Magistrate Judge's resolution of Ground 3, which concerned
Petitioner's contention that the trial court erred in denying his challenge for cause of a
prospective juror. The Magistrate Judge determined that Petitioner defaulted this claim because,
although he presented it on direct appeal, he failed to present it in his petition for writ of
certiorari to the Alabama Supreme Court. Citing Strickland, 466 U.S. 688, 694, the Magistrate
Judge determined that Petitioner's assertion that appellate counsels' ineffectiveness was cause for
the default of this claim was unavailing where he failed to show that had appellate counsel
properly exhausted Ground Three during direct appeal proceedings, the outcome of the appeal
would have been affected. Petitioner argues appellate counsels' conduct caused a "fundamental
defect" and that he has more than proven that appellate counsel's conduct "fell below reasonable"
entitling him to relief. Doc. No. 35 at 18-19. Petitioner's objection fails to assert any specific
basis for undermining the Magistrate Judge's determination that this allegation of trial court error
is defaulted and no cause or prejudice has been shown to excuse the default. The objection is
without merit, therefore, is due to be overruled.
In Grounds 7 & 14 Petitioner asserted a challenge to the trial court's failure to proposed
jury instructions and trial counsels' failure to assert an objection in this regard. The Magistrate
Judge determined that Petitioner's allegation of trial court error was defaulted because it was not
exhausted properly in state court, and, as alleged in terms of trial counsels' ineffectiveness,
Petitioner had not shown he was entitled to relief where he failed to demonstrate counsel's
ineffectiveness under Strickland. In the objection, Petitioner argues that Supreme Court rulings

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essentially trump state procedural bars and cites James v. Kentucky, 466 U.S. 341 (1984),
contending "in a state court where the judge failed to give requested instructions, the Supreme
Court reversed and held that state statute did not take precedent over constitutional law." Doc.
No. 35 at 19. To the extent Petitioner cites James for the proposition that the Magistrate Judge
incorrectly concluded that his claim of trial court error was procedurally barred from review
because not all state procedural rules are accorded deference by federal courts unless it is shown
that the rule is a "firmly established and regularly followed state practice," see Id. at 348, the
objection is without merit and is due to be overruled. The basis for Petitioner's default of Ground
7 in this court was based on his failure to exhaust properly the claim in state courts and not based
on any questionable application of a state procedural rule. See e.g. Wainwright v. Sykes, 433 U.S.
72 (1977) (generally, federal courts need not review habeas corpus issues that were defaulted in
state courts if the default constitutes an adequate and independent state ground.)
In Grounds 8 and 15 Petitioner asserted error by the trial court in failing to disqualify a
potential juror who stated he knew the victim and maintained that trial counsel performed
deficiently by failing to object to this alleged error. In his objection Petitioner re-argues the
merits of the claims and conclusorily states the Magistrate Judge misapplied the law but he
otherwise raises no specific objection to the Magistrate Judge's findings and determinations. The
objection is without merit and is due to be overruled.
In Grounds 17 and 18 Petitioner assigned as error trial counsel's ineffectiveness for
failing to object to the denial of a motion for new trial and for failing to object to the admission
of photographic evidence. The Magistrate Judge has recommended dismissal of these allegations
finding that besides a lack of specificity regarding counsels' alleged deficient performance,
Petitioner failed to indicate how trial counsels’ failures to object to the denial of the motion for

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new trial and to object to the admission of the photographic evidence was ineffective assistance
or how counsels' conduct resulted in prejudice to him. In his objection Petitioner contends he
"specified in previous arguments at to multiple photographs of wounds during autopsy were
admitted of victim" which is reversible error if not used for evidentiary purposes.” Doc. No 35 at
23. Petitioner's pleadings do not support his contention that he made specific arguments
regarding the admission of photographic evidence. Petitioner's objections to the Magistrate
Judge's resolution of Grounds 17 and 18 are without merit for the reasons explained in the
Recommendation and, therefore, due to be overruled.
In Ground 19 Petitioner alleged trial court error in denying his request to file an out-oftime appeal from the denial of his first Rule 32 petition. The Magistrate Judge has recommended
that habeas relief be denied on this claim which alleges a violation of state law and, therefore,
entitles Petitioner to no relief in this federal habeas proceeding. Petitioner's objection is based on
the same argument he made in his petition which was properly considered and rejected. The
objection is without merit and, therefore, due to be overruled.
Finally, the court finds from a review of Petitioner's objections to the Magistrate Judge's
resolution of: 1) Ground 20 (trial court lacked jurisdiction to impose sentence due to IADA
violations); 2) the fundamental miscarriage of justice exception to excuse procedural default;
and 3) his claim of actual innocence, that they are without merit for the reasons set forth in the
Recommendation. These objections, therefore, are due to be overruled.
For these reasons, Petitioner’s objections are OVERRULED, the court ADOPTS the
Recommendation of the Magistrate Judge, and it is hereby
ORDERED that this petition for habeas corpus relief is DENIED, and this case is
DISMISSED with prejudice.

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DONE this 22nd day of April, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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