Phillip Brown v Carol Howes

Filing 116

OPINION AND ORDER denying 111 Motion for Reconsideration ; denying 112 Motion for Reconsideration. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHILLIP BROWN,
Petitioner,

Case Number 09-CV-14850

v.

Honorable Patrick J. Duggan

PATRICIA CARUSO,
Respondent.
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OPINION AND ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION
I. INTRODUCTION
Petitioner Phillip Brown, a state prisoner, filed this habeas case under 28 U.S.C.
§ 2254. On June 12, 2014, the Court issued its Opinion and Order denying the
petition but granting a certificate of appealability with respect to Claims I, II, III, IV,
V, VI, XV, and XXVII. Presently before the Court is Petitioner’s motion for
reconsideration, asserting that the Court erred in its factual findings and analysis of
several of Petitioner’s claims.
II. LEGAL STANDARD
Local Rule 7.1(h) allows a party to file a motion for reconsideration. However,
a motion for reconsideration which presents the same issues already ruled upon by the

court, either expressly or by reasonable implication, will not be granted. Ford Motor
Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). The
movant must not only demonstrate a palpable defect by which the court and the parties
have been misled, but also that a different disposition of the case will result from a
correction thereof. A palpable defect is a defect that is obvious, clear, unmistakable,
manifest, or plain. Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
III. ANALYSIS
A. Factual Findings of Court
The motion first asserts that the Court erred in its factual findings. Petitioner
argues that the Court incorrectly stated that “Pardy’s wife and father arrived at
Petitioner’s house and discovered that Pardy was dead.” The statement is correct. The
record shows that when the pair arrived at the scene an officer informed them that the
victim had died. T I, p. 162. The Court did not state or suggest that Pardy’s wife or
father were the ones who first found the victim.
Next, Petitioner asserts that the Court erroneously stated that there was blood
found throughout the kitchen and bathroom. The Court’s statement is correct.
Droplets of blood were found on the kitchen floor, T I, p. 244, blood was found on
different locations of the refrigerator, id., p. 245-246, and blood was found in the
bathroom. Id., pp. 175-176, 216-217, 266. Blood and tissue were also found on the
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knife in the bathroom. T I, pp. 243, 256-276. In any event, the relevance of the blood
at trial was not the amount found, but that it indicated that the victim retreated and
barricaded himself in the bathroom, undermining Petitioner’s self-defense claim.
Petitioner also asserts that the Court erroneously stated that Petitioner was
arrested in Georgia when in fact he turned himself in to police the day following the
crime. The police witnesses testified that Petitioner fled to Georgia following the
homicide. There, he was arrested and his car was impounded, T II, pp. 176-177, 212,
and he was later extradited to Michigan. T II, p. 212. Petitioner testified in his own
defense that he turned himself in. T III, p. 189. Petitioner’s defense counsel in
closing argument tried to explain why Petitioner fled to Georgia after the homicide.
T IV, p. 239.
Petitioner asserts that the Court unfairly referred to the knife used to stab the
victim as a “hunting knife.” The knife was admitted as an exhibit at trial. It was
described as a heavy two-sided knife, serrated on one side, and sharp on both sides.
T I, pp. 243, 256-276. The Court’s description is a fair representation of the record
evidence.
Petitioner asserts that there were no bloody footprints found on the inside of the
bathroom door. This assertion is correct. The police testimony indicated that
footprints from the victim’s shoes were found on the inside of the bathroom door. T
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I, pp. 268-274. The officer did not state that the prints were made with blood. The
mistake, however, is not significant. The relevance of the footprint on the inside of
the bathroom door was that it suggested that the victim had attempted to barricade
himself inside after being shot with the arrow–undermining the self-defense claim. It
is irrelevant what substance made the impression on the door.
Finally, Petitioner asserts that there was no evidence that the victim was
wounded in different parts of the house. The blood trail evidence shows that the
victim was shot with the arrow outside of the bathroom and that he was stabbed on
floor of the bathroom.
None of the alleged inaccuracies in the Court’s description of the record
evidence show that a different disposition of the case must result.
B. Extraneous Influence on Jury Claim
Petitioner next asserts that the Court failed to address one of his claims – his
claim that the trial court’s response to a jury question that there were no fingerprints
found on the knife constituted an extraneous influence, violating Petitioner’s right to
a fair trial and an impartial jury, as no such evidence was presented at trial.
This claim, along with the related claims concerning the answer to the jury
question, were discussed together in Section III(B) of the opinion. As indicated in the
opinion, Petitioner’s counsel agreed to the answer given to the jury. T V, p. 3. Clearly
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established Supreme Court law did not require Petitioner to be present for the
stipulation, Buell v. Mitchell, 274 F.3d 337, 364 (6th Cir. 2001), and Petitioner has not
demonstrated that his counsel was otherwise ineffective for stipulating to the answer.
In any event, a claim that a juror was subject to extraneous influence or that the
jury was exposed to extrinsic evidence is subject to harmless error analysis. See
Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000); Pyles v. Johnson, 136 F.3d
986, 992 (5th Cir. 1998); Sherman v. Smith, 89 F.3d 1134, 1138-40 (4th Cir. 1996).
Even if an extraneous influence occurred, Petitioner is entitled to habeas relief only
if the error “‘had substantial and injurious effect or influence in determining the jury’s
verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));
see also Fry v. Pliler, 551 U.S. 112, 121-22, 127 S. Ct. 2321, 2328 (2007) (explaining
that Brecht harmless error standard applies on habeas review regardless of whether or
under what standard the state court conducted harmless error review). “There is no
bright line test for determining whether a defendant has suffered prejudice from an
instance of juror misconduct.” Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir.
2000) (internal quotation omitted). In assessing the possibility of prejudice, a court
must “review[] the entire record, analyzing the substance of the extrinsic evidence,
and comparing it to that information of which the jurors were properly aware.” United
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States v. Weiss, 752 F.2d 777, 783 (2d Cir. 1985). However, “[i]n a habeas corpus
proceeding, a state court’s findings on whether, and how, extraneous matters affected
jury deliberations ‘deserve[ ] a “high measure of deference.”’” Mahoney v.
Vondergritt, 938 F.2d 1490, 1492 (1st Cir. 1991) (quoting Rushen v. Spain, 464 U.S.
114, 120, 104 S. Ct. 453, 456 (1983) (in turn quoting Sumner v. Mata, 455 U.S. 591,
598, 102 S. Ct. 1303, 1307 (1982))). As explained more fully on pages 15-16 of the
Court’s opinion denying the petition, the weight of the evidence against Petitioner was
overwhelming. There is no reasonable probability that the result of the trial would
have been different had the jury been instructed that there was no evidence regarding
fingerprints on the knife rather than being informed that no fingerprints were found
in the knife.
C. Constructive Denial of Counsel Claim
Petitioner next asserts that the Court did not address the claim that he was
constructively denied counsel because, contrary to the Court’s analysis, his trial
counsel claimed in an affidavit that he never stipulated to the answer to the jury
question. Petitioner contends that his counsel’s assertion that there was no stipulation
removes his claim from the ordinary Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984) mode of analysis, and places it into the Cronic v. United States, 466
U.S. 648, 104 S. Ct. 2039 (1984) category, in which prejudice is presumed.
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While the Court acknowledged in the opinion that Petitioner included the
affidavit with his petition, it did not rely on it in adjudicating the claim. Rather, the
Court limited its review to “the existing state court record.” ECF 109, p. 23. As
explained in the opinion, in Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), the
Supreme Court held that where habeas claims had been decided on their merits in state
court, as here, a federal court’s review under 28 U.S.C. § 2254(d)(1) – whether the
state court determination was contrary to or an unreasonable application of established
federal law – must be confined to the record that was before the state court at the time.
Counsel’s affidavit was not before the state court when it decided this claim during
his appeal of right. ECF 109, p. 20. Therefore, its contents cannot be considered in
deciding Petitioner’s claim under § 2254(d), and without it, Petitioner cannot prevail
on his offered rationale for considering the claim under Cronic rather than Strickland.
D. Prosecutorial Misconduct
Finally, Petitioner asserts that the Court did not address his claim that the
prosecutor committed misconduct by stipulating to the answer to the jury question.
The Court discussed Petitioner’s multiple prosecutorial misconduct claims in Section
III(D) of the opinion. This particular allegation, however, was not included in the
discussion because it was not one of the claims Petitioner raised during his appeal of
right.
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Petitioner asserts that this particular allegation of misconduct was first raised
in his motion for relief from judgment filed in the trial court. The trial court denied
the claim because Petitioner failed to demonstrate good cause under Michigan Court
Rule 6.508(D)(3) for failing to raise it on direct appeal. ECF 23-20, pp. 5-6. The
Michigan Court of Appeals denied relief under Rule 6.508(D), People v. Brown, No.
283419 (Mich. Ct. App. May 12, 2008), and the Michigan Supreme Court denied
relief under Rule 6.502(G), which concerns successive post-conviction motions.
People v. Brown, No. 137072 (Mich. Sup. Ct. March 23, 2009).
Respondent argued in its answer that the claim was therefore procedurally
defaulted, and this Court agrees with that analysis. Petitioner has not demonstrated
why this allegation of misconduct was not included with those presented to the state
court during his appeal of right. Furthermore, for the reasons stated above, the
stipulated answer to the jury question did not have a substantial impact on the result
of the trial, and it was therefore harmless.
IV. CONCLUSION
For the reasons stated above, Petitioner’s motion for reconsideration is
DENIED.
SO ORDERED.
s/Patrick J. Duggan
United States District Judge
Dated: March 20, 2015
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Copies to:
Paul D. Hudson, Esq.
Raina Korbakis, A.A.G.
Phillip Brown

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