Phillips v. Reves (Governor)
MEMORANDUM OPINION re 17 Final Judgment Denying Petition. Signed by District Judge Sharion Aycock on 11/15/2023. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DONALD HAYDEN PHILLIPS
TATE REEVES, ET AL.
This matter comes before the court on the pro se petition of Donald Hayden Phillips for a writ
of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; Phillips has
replied, and the parties have submitted additional briefing. The matter is ripe for resolution. For the
reasons set forth below, the instant petition for a writ of habeas corpus will be denied.
Habeas Corpus Relief Under 28 U.S.C. § 2254
The writ of habeas corpus, a challenge to the legal authority under which a person may
be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar
Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St.
John's L.Rev. 55 (1934). It is “perhaps the most important writ known to the constitutional law
of England,” Secretary of State for Home Affairs v. O’Brien, A.C. 603, 609 (1923), and it is
equally significant in the United States. Article I, § 9, of the Constitution ensures that the right
of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or
invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56.
Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas
corpus principles developed over time in both English and American common law have since
The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the
1948 Judicial Code. The recodification of that year set out important procedural
limitations and additional procedural changes were added in 1966. The scope of the
writ, insofar as the statutory language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism and Effective Death
Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners
and setting out special, new habeas corpus procedures for capital cases. The changes
made by the 1996 legislation are the end product of decades of debate about habeas
Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of
the federal Constitution or laws, permitting a federal court to order the discharge of any person held
by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S. Ct.
582, 588, 59 L. Ed. 969 (1915).
Donald Hayden Phillips was convicted of aggravated assault (Count I), kidnapping
(Count II), and sexual battery (Count III) in the Circuit Court of Grenada County, Mississippi, in
Cause No. 2015-028-CR. SCR, Vol. 1 at 182.2 On May 26, 2017, the circuit court sentenced
Phillips to serve a term of twenty years, with fifteen years suspended and five years to serve in
Count I, to run consecutively to the sentence in Count III; thirty years in Count II to run
concurrently to the sentence in Count III; and thirty years in Count III, all to be served in the
custody of the Mississippi Department of Corrections (“MDOC”). SCR, Vol. 2 at 90-92.
Phillips, through counsel, appealed his convictions and sentences, raising the following
Whether the trial court erred in allowing substitute technical reviewer testimony
at trial thereby violating defendant’s rights under the Confrontation Clause.
The court has drawn the procedural posture of this case from the State’s response; the
posture is well-documented and uncontested.
The jury was unable to reach a verdict as to the charge of rape in Count IV of the
Whether the trial court erred by refusing to admit into evidence five (5)
photographs of [the victim] and (1) Facebook posting of [the victim] made after
the alleged occurrence as offered into evidence by the defendant.
Whether the sentencing of Hayden to thirty-five (35) years in the State
Penitentiary without the possibility of parole constituted unconstitutional cruel
and unusual punishment and was the result of the Court’s abuse of discretion
and bias and prejudice against Hayden.
Whether the trial court erred in denying Hayden’s Motion for Judgment
Notwithstanding the Verdict or, in the Alternative, for a New Trial.
Whether the prejudicial effect of cumulative errors of the trial court would
warrant a new trial.
SCR, Brief of Appellant. On June 18, 2019, the Mississippi Court of Appeals affirmed Phillips’
convictions and sentences. Phillips v. State, 285 So. 3d 685 (Miss. Ct. App. 2019), reh’g
denied, Oct. 8, 2019, cert. denied, 284 So.3d 754 (Miss. 2019).3
On June 18, 2020, Phillips, proceeding pro se, filed in the Mississippi Supreme Court an
“Application for Leave to Proceed in the Trial Court” with his “Petition for Post-Conviction
Relief and Memorandum of Law Supporting.” SCR, Cause No. 2020-M-00637. Phillips
asserted the following grounds in his post-conviction application (as stated by petitioner in the
“Concise Statement of the Claims”):
Whether the trial court erred in allowing substitute technical reviewer testimony
at trial, violating petitioner’s rights under the Confrontation Clause.
Whether the sentencing of Hayden to thirty-five years without parole was
disproportionate and violative of his 8th and 14th Amendment rights.
Whether the State’s evidence was insufficient to show elements of sexual
battery under § 97-3-95(1)(a) beyond a reasonable doubt.
Phillips was proceeding pro se at the time he filed his certiorari petition in the
Mississippi Supreme Court. The court has liberally construed Phillips’ pro se certiorari petition
as raising only the claims presented in Grounds One, Two, and Four in the instant habeas corpus
petition. See SCR, Certiorari Folder. Phillips raised the claim in Ground Three of the instant
petition to the state’s highest court in post-conviction pleadings. See SCR, Cause No. 2020-M00637.
Id. On July 23, 2020, the Mississippi Supreme Court denied Phillips’ application for postconviction collateral relief:
In his application, Phillips contends he is entitled to post-conviction collateral
relief based upon allegations of: (1) a violation of his constitutional rights under
the Confrontation Clause; (2) a sentence which amounted to cruel and unusual
punishment; and (3) insufficient evidence to support his sexual-battery conviction.
After due consideration, the panel finds that each of these claims were raised
before, and rejected by, the Mississippi Court of Appeals on direct appeal. As
these claims are barred by res judicata, and fail to meet any exceptions thereto,
the panel finds this application should be denied.
See Exhibit B (citations omitted).4, 5
On August 17, 2020, Phillips proceeding pro se, filed the instant petition , claiming:
Violation of Confrontation Clause. I was not able to
confront DNA analyst because she was on a ten-week
maternity leave so State used substitute technical reviewer
to testify about the report that Kathryn Rodgers, the DNA
analyst performed and authored. The technical reviewer
conducted no test.
Trial court erred by refusing to admit five photographs of
prosecutrix after alleged occurrence. Pictures show she
was not ever traumatized but in fact better than ever and
The res judicata bar may be found in Miss. Code Ann. § 99-39-21(3):
(3) The doctrine of res judicata shall apply to all issues, both factual and legal,
decided at trial and on direct appeal.
The state court’s finding that a claim is barred by res judicata “does not prevent federal review
of a habeas claim.” Jackson v. Epps, 447 F. App'x 535, 544 (5th Cir. 2011) (citing Cone v. Bell,
556 U.S. 449 (2009)). Further, because Phillips’ claims were held to be barred by res judicata
in post-conviction proceedings, but were heard on the merits in Phillips’ direct appeal, this court
may “look through” to the last reasoned opinion in state court. Ylst v. Nunnemaker, 501 U.S.
797 (1991); see also Wilson v. Sellers, — U.S. —, 138 S. Ct. 1188, 1192 (2018) (discussing Ylst
and holding that the “federal court should ‘look through’ the unexplained decision to the last
related state court decision that does provide a relevant rationale” and “presume that the
unexplained decision adopted the same reasoning.”)
The exhibits referenced in this memorandum opinion may be found attached to the State’s
response to the instant petition for a writ of habeas corpus.
Whether the sentence of thirty-five years was
unconstitutional and cruel and unusual punishment. I am a
first-time offender; showed judge was biased and abused
discretion, having trial in courthouse [the victim] worked
Trial court erred in denying JNOV. No knife ever found,
no doctor to explain what caused wounds. A lot of
inconsistent statements. She was on meth and failed drug
test for it. No DNA match. Just possible contributor.
Had multiple times to leave her house but never did (no
kidnaping) and never was bound. She said in open court
she does not know what caused wounds.
Doc. 1 at 5-10.6
The Mississippi Court of Appeals accurately summarized the facts and procedural history
of this case:
¶ 2. Before dawn, one spring day, Jane Doe [fn omitted] was awoken by the
sound of someone at her front door. When she went outside, she initially did not
see anyone, but as she turned to go back in, she saw Donald Hayden Phillips
backed up against her trailer. Once Jane spotted him, Phillips gave her a “crazy
look” and forced his way inside.
¶ 3. Jane told Phillips to leave and attempted to stop him from advancing further
into her home. Phillips responded by stabbing Jane in the neck with a
pocketknife. Jane fled to the front door in an attempt to escape, but Phillips
stabbed her in the back before she could reach the door. Jane then lost
¶ 4. After she regained consciousness, Jane made another escape attempt – this
time through the back door. Phillips again caught her before she could escape.
He threw Jane on the couch, and she lost consciousness for a second time. When
The petitioner has attempted to raise two more claims (ineffective assistance of counsel
and bias of the prosecutor), but did not do so until he filed his Traverse . However, claims
not raised in an initial habeas corpus petition are not properly before the reviewing court.
Hopper v. Dretke, 106 F. App’x 221, 228 n.25 (5th Cir. 2004); Yohey v. Collins, 988 F.2d 222,
225 (5th Cir. 1993). As such, the court will not consider these claims. The remainder of the
Traverse challenges the jury’s determination of the facts and recapitulates the arguments in the
petition. As discussed below, the jury determines the facts in a criminal case. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Jane awoke, Phillips had either already removed her pants or was in the process of
doing so. Phillips then ripped off her underwear and repeatedly attempted to
rape her over the next several hours. During this time Phillips used his fingers to
digitally penetrate Jane’s vagina and anus “aggressively [and] multiple times.”
He also threatened to kill Jane if she tried to escape again.
¶ 5. Several hours into the attack, Jane’s sister and her sister’s boyfriend arrived at
the trailer. Upon their arrival, Phillips forced Jane into the bathroom. While
brandishing a knife, Phillips pressed himself against the bathroom door and
threatened to kill Jane if she did not get rid of them. During this time, Jane’s
neighbor and Jane’s ex-boyfriend also arrived at the trailer. When Jane’s exboyfriend told her he was leaving she shouted out, “[P]lease don’t go!” Jane’s exboyfriend then broke down the bathroom door -simultaneously freeing Jane and
trapping Phillips inside. Jane escaped to her back deck and from there was
transported to the hospital.
¶ 6. The emergency-room nurse testified that Jane had lost a lot of blood from
multiple potentially life-threatening wounds. Jane was stabbed a total of
seventeen times in her neck, hand, back, forearm, and both breasts. A rape kit
was performed, multiple pieces of hair were collected, and swabs were taken from
all over Jane’s body.
¶ 7. Kathryn Rodgers was the analyst who tested the samples collected at the
hospital. The swabs taken of Jane’s vagina and anus tested positive for seminal
fluid and spermatozoa. DNA testing of the seminal fluid and spermatozoa could
not exclude Phillips as a potential contributor, and there was a 99.9% chance that
the rest of the population could be excluded as a potential contributor.
¶ 8. At the time of trial, Rodgers was either on or nearing maternity leave.
Because Rodgers was unavailable to testify at trial, the State intended to call the
technical reviewer on the case, George Schiro, to testify in Rodgers’ place. In
addition to being the technical reviewer on the case, Schiro was also a DNA
analyst and director of the laboratory where the tests were conducted. The trial
court found his close involvement was sufficient to give testimony.
Phillips, 285 So. 3d at 688-89.
Grounds Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered Grounds One through Four on the
merits and decided those issues against the petitioner; hence, these claims are barred from
habeas review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d),
unless they meet one of its two exceptions:
(d) 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.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law.
Morris v. Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies
to questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the
petitioner’s claims challenge both the application of law and the finding of fact, this court must
consider the exceptions in both subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law.” Id. (emphasis added). A state court’s decision
is contrary to federal law if it arrives at a conclusion opposite to that reached by the United
States Supreme Court on a question of law, or if it decides a case differently from the Supreme
Court on a set of “materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 1523 (2000). A state court’s decision involves an unreasonable application of
federal law if it identifies the correct governing principle but unreasonably (not just incorrectly)
applies that principle to facts of the prisoner’s case; this application of law to facts must be
objectively unreasonable. Id. at 1521. As discussed below, the petitioner has not shown that
the Mississippi Supreme Court unreasonably applied the law to the facts, or that the court’s
decision contradicted federal law. As such, the exception in subsection (d)(1) does not apply to
Grounds One through Four of the petitioner’s claim.
Nevertheless, under § 2254(d)(2) these grounds may still merit review if those facts to
which the supreme court applied the law were determined unreasonably in light of the evidence
presented. Because the supreme court is presumed to have determined the facts reasonably, it is
the petitioner’s burden to prove otherwise, and he must do so with clear and convincing
evidence. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). As
discussed below, the petitioner has failed to meet this burden; as such, he cannot use subsection
(d)(2) to move these claims beyond § 2254(d), which bars from habeas corpus review issues
already decided on the merits.
Ground One: No Confrontation Clause Violation
Phillips argues that the trial court violated his constitutional rights under the
Confrontation Clause by allowing surrogate testimony regarding the results of DNA testing. He
argues that he should have been permitted to confront the DNA analyst who actually performed
the testing (who was on maternity leave at the time of trial), rather than the technical reviewer
(who testified in her stead at trial). Phillips raised this claim on direct appeal to the Mississippi
Court of Appeals – and to the Mississippi Supreme Court on certiorari review. He raised the
claim once more in his application for post-conviction relief in the Mississippi Supreme Court.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI., cl. 2. Thus, the Sixth Amendment
guarantees a defendant’s right to confront witnesses who “bear testimony” against him.
Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354 (2004). The Confrontation Clause
prohibits (1) testimonial out-of-court statements; (2) made by a person who does not appear at
trial; (3) received against the accused; (4) to establish the truth of the matter asserted; (5) unless
the declarant is unavailable, and the defendant had a prior opportunity to cross-examine him.”
United States v. Jackson, 636 F.3d 687 (5th Cir. 2011) (citations omitted). The Confrontation
Clause applies only to statements offered to prove the truth of the matter asserted. Williams v.
Illinois, ––– U.S. –––, 132 S.Ct. 2221, 2228 (2012)(plurality opinion), Crawford, 541 U.S. at 59,
A witness’ testimony against a defendant is thus inadmissible “unless the witness appears
at trial or, if the witness is unavailable, the defendant had a prior opportunity for crossexamination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009) (citing
Crawford, 541 U.S. at 54). Under the Confrontation Clause, a defendant need not seek the
attendance and testimony of witnesses offering evidence against him. Id. at 324. The
prosecution has an affirmative duty to call each witness, elicit testimony, and present the witness
Converting the prosecution’s duty under the Confrontation Clause into the defendant's
privilege under state law or the Compulsory Process Clause shifts the consequences of
adverse-witness no-shows from the State to the accused. More fundamentally, the
Confrontation Clause imposes a burden on the prosecution to present its witnesses, not
on the defendant to bring those adverse witnesses into court. Its value to the
defendant is not replaced by a system in which the prosecution presents its evidence
via ex parte affidavits and waits for the defendant to subpoena the affiants if he
Id. The prosecution may, nonetheless, introduce the statement of a witness who is unavailable,
even absent a prior opportunity for cross-examination by the defense, under two circumstances:
(1) when the statement is not “testimonial,”7 and (2) when the witness is unavailable because the
defendant engaged in wrongdoing designed to prevent the witness from testifying.8
Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008); see also Fed. R. Ev. 804(b)(6).
In Bullcoming v. New Mexico, 564 U.S. 647 (2011) the Supreme Court expounded upon
the issue. The State sought to admit forensic reports into evidence as a business record and an
exception to the hearsay rules. The Court in Bullcoming considered whether the Confrontation
Clause would permit the prosecution to introduce “a forensic laboratory report containing a
testimonial certification – made for the purpose of proving a particular fact – through the in-court
testimony of a scientist who did not sign the certification or perform or observe the test reported
in the certification.” Id. at 652.
The analyst who tested Bullcoming’s blood sample and certified the results was on
unpaid leave at the time of trial, and the other analyst who substituted to testify about the report
neither participated in the testing nor observed the test being conducted – and had no
involvement in the creation of the report. Id. at 655-56. The Supreme Court found that, under
those facts, the lab report was testimonial and that the use of the surrogate testimony at trial
violated the defendant’s rights under the Confrontation Clause. Id. at 663. Phillips, citing
Bullcoming, argues that the testimony in his trial by a substitute witness, a technical reviewer,
violated his rights under the Confrontation Clause.
In the instant case, Kathryn Rodgers was the analyst who tested samples collected at the
hospital, including swabs from the victim, and those swabs “tested positive for seminal fluid and
spermatozoa.” Phillips, 285 So. 3d at 689. DNA testing “could not exclude Phillips as a
potential contributor, and there was a 99.9% chance that the rest of the population could be
excluded as a potential contributor.” Id. Rodgers was “either on or nearing maternity leave”
and thus unavailable to testify at the time of trial. Id. The State filed a pretrial motion to
substitute witnesses and sought to call, instead, the technical reviewer, George Schiro, to testify
about the DNA testing. SCR, Vol. 1 at 87-106.
At the hearing on the State’s motion to substitute, Schiro testified that he was the lab
director in charge of lab operations and quality control, as well as a DNA analyst. SCR, Vol. 3
at 4-5. Schiro stated that Rodgers was the analyst who drafted the report, but that she was
scheduled for maternity leave and would be unable to testify until she returned. Id. at 17.
Schiro testified that Rodgers analyzed the samples and drafted the report; however, as the
technical reviewer, he examined all data, provided quality control, and ensured that the data
supported the report. Id. at 8. Schiro stated that during this process, he arrived at his own
independent expert opinion regarding the DNA analysis to a reasonable degree of scientific
certainty, testifying that he came to an independent conclusion “after reviewing all the data in the
report in the file.” Id. at 8-9. He testified that his opinion was not a “rubber stamp” and that he
had one hundred percent confidence in the report and results. Id. He then discussed the control
measures in the lab and the testing procedures used – confirming that, based on his review, he
formed his own expert opinion regarding the DNA analysis and results. Id. at 10-13.
After the hearing on the State’s motion to substitute witness, the trial court found that
Schiro’s close involvement was sufficient to allow him to testify in the case. SCR, Vol. 1 at
150; Vol. 2 at 152-53. The trial judge found that Schiro was “much more than a mere conduit in
this case” and that, based on his training and experience, Schiro had reviewed the raw data and
procedures in place and come to his own conclusion. SCR, Vol. 3 at 25-26. The trial court
further found that, because Schiro was subject to cross-examination on his findings, allowing his
testimony would not violate the Confrontation Clause. Id. The trial court did not want to
further delay the trial by waiting for Rodgers to return from maternity leave because “this case
has been delayed numerous times already,” and “Mr. Schiro is certainly capable of testifying.”
Id. at 26.
Phillips raised his claim in Ground One of the instant petition in his direct appeal to the
Mississippi Court of Appeals. Phillips argued on direct appeal, as here, that the trial court
should have granted a continuance to allow Rodgers to return from maternity leave to testify.
He argues that the trial court violated the Confrontation Clause by allowing the State to
substitute Schiro as a witness to testify regarding the results of the DNA test.
The Mississippi Court of Appeals discussed the Crawford decision, which holds that
testimonial statements made out-of-court by a witness not present at trial are admissible only if
the declarant is not available, and the defendant is given the opportunity to cross-examine the
witness. Phillips, 285 So. 3d at 689. The court held that, under Melendez-Diaz and
Bullcoming, forensic testing, like that in the present case, meets the definition of testimonial
statements and cannot be introduced through “surrogate testimony” of a witness who had not
been involved in the creation of the documents at issue. Id. The state court found, however,
that “neither Melendez-Diaz nor Bullcoming stands for the proposition that automatic per se error
– much less reversible error – occurs in all cases where the primary analyst who performed the
test and prepared the report … fails to testify.” Id. at 690 (citations omitted).
The court of appeals discussed the two-part state law test for determining the
admissibility of surrogate testimony: (1) “the testifying witness must have intimate knowledge
of the particular report sought to be admitted,” and (2) “the testifying witness must have been
actively involved in producing that report.” Id. at 690. The Court of Appeals then considered
Phillips’ claim and found that the facts in his case were distinguishable from those in Bullcoming
because Schiro played such a large role in creating and reviewing the report. The Court of
Here, the testifying witness, Schiro, was the director of the laboratory where the
test was performed. Schiro actively participated in the report’s production and
possessed intimate knowledge of the analyses rendered, making his testimony
admissible. Schiro helped draft the report, calculated the statistics, and checked
the data to make sure it supported the report. Schiro finalized the report and had
the final say as to what was approved. Most importantly, Schiro independently
evaluated the data and arrived a[t] his own, independent expert opinion based
upon a reasonable degree of scientific certainty. The dangers of a defendant
being deprived of the ability to confront the evidence arrayed against him are not
present under the specific facts of this case.
Phillips, 285 So. 3d at 690. The court held that, “[b]ecause Schiro had intimate knowledge of
the report and was actively involved in its creation we find that there was no Confrontation
Clause violation[.]” Id.
To resolve this issue in the present case, the court must determine whether clearly
established federal law prohibits the State from introducing the testimony of Schiro, the
technical reviewer, regarding the results of the DNA testing. Phillips argues that the state
court’s decision in this case was contrary to the holding in Bullcoming. A case in point is Grim
v. Fisher, 816 F.3d 296, 307 (5th Cir. 2016), where the testifying witness was a technical
examined the analyst’s report and all of the data, including everything the analyst
did to the item of evidence, ensured that the analyst did the proper tests and that
the analyst’s interpretation of the test results was correct; ensured that the results
coincided with the conclusion in the report; agreed with a reasonable degree of
certainty with the examinations and results of the report; and signed the report.
Id. at 310. The Fifth Circuit discussed the application of Bullcoming to testimony of a technical
reviewer (rather than the tester), finding:
[A]t most, the decision in Bullcoming clearly establishes that, when one scientist
or analyst performs a test reported in a forensic laboratory report containing a
testimonial certification – made for the purpose of proving a particular fact – and
the prosecution introduces the report and certification to prove that particular
facts, the Confrontation Clause forbids the prosecution from proving that
particular fact through the in-court testimony of a scientist or analyst who neither
signed the certification nor performed or observed the test reported in the
certification. Bullcoming does not clearly establish what degree of
involvement with the forensic testing, beyond what is present in Bullcoming,
is required of a testifying witness. In other words, at most, Bullcoming holds
that if scientist A performed the test, the prosecution cannot prove a particular fact
contained in scientist A’s testimonial certification by offering the in-court
testimony of scientist B, if scientist B neither signed the certification nor
performed or observed the test. But Bullcoming does not hold that scientist B
cannot testify even if he has a sufficient degree of involvement with the forensic
Grim, 816 F.3d at 307 (emphasis added).
The Fifth Circuit in Grim also acknowledged Bullcoming’s lack of clarity regarding what
degree of involvement of the surrogate witness in the underlying testing and analysis would be
required to satisfy the Confrontation Clause. Id. The Fifth Circuit ultimately held that the
disparate holdings regarding Bullcoming among many courts “supports the conclusion that the
Supreme Court has not clearly established what degree of involvement with the forensic testing
is required of an in-court witness offered to prove a particular fact in a testimonial certification
beyond what was deemed insufficient in Bullcoming.” Id. at 309. Bullcoming did not address
the degree of involvement that the witness in that case had; as such, Bullcoming did not clearly
establish federal law as to that issue. In other words, Bullcoming did not establish the minimum
level of participation that a surrogate witness must have in creating a report necessary for the
witness to testify regarding the report. The law on this point is not clearly established.9
In the absence of clearly established federal law on that ruling, the Mississippi Supreme
Court’s decision simply “could not have been contrary to, or an unreasonable application of,
clearly established federal law.” Id. As such, the trial court did not violate the Confrontation
Clause in allowing the substitute witness Schiro to testify. See Jenkins v. Hall, 910 F.3d 828
(5th Cir. 2018). Phillips is not entitled to federal habeas corpus relief as to his claims in Ground
The Fifth Circuit cited Grim with approval in a factually similar case. See Jenkins v.
Hall, 910 F.3d 838 (5th Cir. 2018).
Ground Two: No Error in Denying Admission of Photographs into Evidence
Phillips argues in Ground Two that the trial court erred in excluding photographs and a
Facebook post the victim made after the crimes. Phillips argues that the photographs show that
the victim “was not ever traumatized but in fact better than ever and enjoying life.” Doc. 1 at 7.
Phillips raised this claim in the Mississippi Court of Appeals on direct appeal of his convictions
and sentences and during certiorari review by the Mississippi Supreme Court.
During the cross-examination of the victim, defense counsel sought to introduce several
“Facebook [posts] or text messages made by [the victim] after the occurrence.” SCR, Vol. 4 at
151. Defense counsel argued that the jury should see “how she was acting after [the attack].”
Id. The prosecution objected as to the relevance of the proffered messages because they
occurred after the crimes. Id. The trial judge declined to admit the messages or posts into
evidence, finding that the evidence in question was “so irrelevant it’s not even worthy of
bringing it to the Court’s attention.” Id. at 152. The trial court added, “[t]here’s no set standard
of how somebody is going to behave after they’ve been brutally assaulted and raped. But these
prove nothing. I mean, they’re as irrelevant as anything I’ve ever seen handed to the Court.”
First, a claim – based upon state law – challenging a ruling on the admissibility of
evidence is precluded from federal habeas corpus review because a state prisoner may only
obtain relief under 28 U.S.C. § 2254 if he is held “in custody in violation of the Constitution or
laws or treaties of the United States.” Engle v. Isaac, 456 U.S. 107, 118 (1981). A “ ‘mere
error of state law’ is not a denial of due process. If the contrary were true, then ‘every erroneous
decision by a state court on state law would come [to this Court] as a federal constitutional
question.’ ” Id. at 121 n.21 (citations omitted);
State court “evidentiary rulings present cognizable habeas claims only if they run afoul
of a specific [federal] constitutional right or render the petitioner's trial fundamentally unfair.”
Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999) (citing Cupit v. Whitley, 28 F.3d 532, 536
(5th Cir. 1994)) see also Wainwright v. Goode, 464 U.S. 78, 86 (1993) (“[M]ere errors of state
law are not the concern of this Court ... unless they rise for some other reason to the level of a
denial of rights protected by the United States Constitution.”) “[I]n reviewing state court
evidentiary rulings, the federal habeas court’s role ‘is limited to determining whether a trial
judge’s error is so extreme that it constituted a denial of fundamental fairness’ under the Due
Process Clause.” Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (citations omitted).
For these reasons, the alleged violation of state rules, without more, is not a valid ground for
habeas corpus relief. Edwards v. Butler, 882 F.2d 160, 164 (5th Cir. 1989) (citations omitted).
As set forth above, Phillips raised this evidentiary issue on direct appeal – and again in
his petition for certiorari review in the Mississippi Supreme Court. On appeal, Phillips argued
that the admission of the photographs and Facebook posts would have shown that the victim’s
behavior after the attack “was inconsistent with the behavior of someone who had been stabbed
seventeen times, kidnapped, sexually assaulted, and raped.” Phillips, 285 So. 3d at 690. The
state appellate court reviewed the trial court’s decision to exclude the photographs and Facebook
posts for an abuse of discretion. Id. at 691. The state appellate court found that photos of the
victim after the crime did not establish whether her accusations were credible. Id. The court
held that, “[s]imply because there were photos of the victim in the weeks and months subsequent
to the attack where she was smiling or enjoying life does not go to whether Phillips attacked
her.” Id. The court noted that the relevant issue was the identity of the person who caused the
victim’s injuries, not the effect of those injuries on her life:
The evidence was uncontested that [the victim] was injured and suffered major
loss of blood. The question at trial was if Phillips caused that harm. If the posts
had cast doubt as to the cause of the injuries, they could have been properly
Id. The court concluded that Phillips’ failed to show “alleged inconsistencies [in the victim’s
testimony] would be resolved by admission of the photos and Facebook post[s],” as they were
unrelated to the proffered evidence. Id
To the extent that Phillips bases his claim in Ground Two on state law, it is beyond the
scope of federal habeas corpus review. In addition, as discussed above, the trial court’s ruling
on this evidence was correct under state law, and Phillips’ challenge to the trial court’s ruling is
without substantive merit. Further, Phillips has not explained how the decision not to admit the
photographs violated federal law. As such, the holdings of the Mississippi Court of Appeals on
direct appeal and the Mississippi Supreme Court in denying certiorari review were correct.
Hence, Phillips is not entitled to habeas corpus relief on his claim in Ground Two of the petition.
Ground Three: The Total Sentence of Thirty-Five Years Was
Constitutional – and Did Not Constitute Cruel and Unusual Punishment
In Ground Three, Phillips argues that his sentence of thirty-five years was
unconstitutional, rising to the level of cruel and unusual punishment, because he is a first-time
offender. He raised this claim on direct appeal to the Mississippi Court of Appeals – and to the
Mississippi Supreme Court in his application for post-conviction relief.
“[T]he Eighth Amendment's ban on cruel and unusual punishments ‘prohibits ...
sentences that are disproportionate to the crime committed,’ and the ‘constitutional principle of
proportionality has been recognized explicitly in this Court for almost a century.’” Ewing v.
California, 538 U.S. 11 (2003) (citing Solem v. Helm, 463 U.S. 277, 284-86 (1983)). Courts
must give “substantial deference to the broad authority [of] legislatures” to set punishments for
crimes and “the discretion [of] trial courts … in sentencing convicted criminals.” Solem, 463
U.S. at 292. In cases where an initial comparison of the crime to the sentence would lead to
“gross disproportionality,” a sentence may be subject to the three-pronged analysis set forth in
Solem. The factors to consider when determining whether a sentence is disproportionate to the
crime are: (1) the gravity of the offense; (2) how the sentence compares to those imposed for the
same crime on other criminals in the same jurisdiction; and (3) how the sentence compares to the
same crime in other jurisdictions. Id. at 291-292.
However, generally, habeas corpus relief is warranted on a challenge to a sentence only
if a petitioner can show that the sentence imposed “exceeds or is outside the statutory limits or is
wholly unauthorized by law.” Haynes v. Butler, 825 F.2d 921, 923 (5th Cir. 1987).10 In
Lockyer v. Andrade,11 the Supreme Court addressed whether habeas corpus relief was warranted
on a claim that a state sentence violated the Eighth Amendment. There is no “clear or consistent
path for courts to follow” in determining whether a sentence violates the Eighth Amendment.
Lockyer, 538 U.S. at 72. However, “one governing … [Eighth Amendment] principle emerges
as ‘clearly established’ under § 2254(1): A gross disproportionality principle is applicable to
sentences for terms of years.” Id. “[T]he only relevant clearly established law amenable to the
‘contrary to’ or ‘unreasonable application of’ framework is the gross disproportionality principle,
the precise contours of which are unclear, applicable only in the ‘exceedingly rare’ and ‘extreme’
case.” Id. (citations omitted).
Mississippi appellate courts have also held, “[a]s a general rule, this Court will not
disturb a sentence so long as it does not exceed the maximum term authorized by statute.” Day
v. State, 818 So. 2d 1196, 1203 (Miss. Ct. App. 2002); see also Burrell v. State, 726 So. 2d 160,
162 (Miss. 1998).
Lockyer v. Andrade, 538 U.S. 63 (2003).
- 18 -
Phillips was convicted for: aggravated assault (Count I) (maximum sentence of 20
years, Miss. Code Ann. § 97-3-7(2)(a)); kidnapping (Count II) (maximum sentence of life, if
penalty set by a jury, or 30 years, if penalty set by the court, Miss. Code Ann. § 97-3-53); and
sexual battery (Count III) (maximum sentence of 30 years, Miss. Code Ann. § 97-3-101(1)).
Phillips was sentenced to thirty years for the sexual battery conviction; thirty years for the
kidnapping conviction (to be served concurrently with the sentence for sexual battery); and
twenty years for the aggravated assault conviction, with fifteen years suspended and five years
(to serve consecutively to the other two sentences.) SCR, Vol. 2 at 190-92; Vol. 5 at 370-76.
Clearly, Phillips was sentenced within the statutory limits for the crimes of his convictions. The
court ordered two of his sentences to run concurrently, and suspended a portion of his third
sentence – resulting in a sentence of 35 years. Phillips faced a sentence of 80 years if the trial
court had imposed the full term in all three convictions and had them run consecutively. As
such, the court showed some leniency, despite noting that this was one of the “most brutal and
senseless crimes that th[e] Court ha[d] seen,” while noting Phillips’ lack of contrition. SCR,
Vol. 5 at 371.
Phillips raised his claim challenging the constitutionality of the sentences imposed on
direct appeal and again in his application for post-conviction relief. On appeal, the state
appellate court discussed the statutory minimum and maximum as reflected in the appropriate
statute for each crime for which Phillips was convicted. Phillips, 285 So. 3d at 691-92. As the
court explained, the sentences imposed by the trial court fell within the statutory limits for each
of the crimes and were, therefore, presumptively valid and not in violation of Phillips’ right to be
free from cruel and unusual punishment. Id. at 692. A review of the facts of the instant case
reveals that the state court did not run afoul of the Eighth Amendment in upholding the sentences
imposed, as the sentences are well within statutory limits and do not fall into the category of an
“exceedingly rare” or “extreme” case as discussed in Lockyer.
The total sentence imposed in this case was not disproportionate, much less “grossly
disproportionate” to the crimes charged. The facts in this case did not constitute a scenario that
was materially indistinguishable from a prior decision of the United States Supreme Court. See
Lockyer, 538 U.S. at 72. The instant case is not an extraordinary one – and thus does not rise to
the level of an Eighth Amendment violation as a grossly disproportionate sentence. Id. at 77.
For these reasons, the decision by the state appellate courts upholding the trial court’s sentence
was neither contrary to, nor an unreasonable application of, clearly established federal law to the
facts of this case. Id. Further, the decision was not based on an unreasonable determination of
the facts in light of the evidence presented. As such, Phillips is not entitled to habeas corpus
relief on his claim in Ground Three.
Ground Four: The Evidence Presented at
Trial Was Sufficient to Support the Verdict
In Ground Four, Phillips challenges the sufficiency of the evidence presented to convict
him of the crimes charged. He contends that: (1) there was no knife found at the scene; (2)
there were inconsistent statements; (3) “[the victim] was on meth and failed drug test for it;” (4)
there was no DNA match, “just possible contributor;” (5) the victim had “multiple times to leave
her house but never did (no kidnaping) and never was bound;” and (6) the victim stated in court
that “she [did] not know what cause[d] wounds.” Doc. 1 at 10. He raised this challenge to the
sufficiency of the evidence on direct appeal to the Mississippi Court of Appeals and again on
certiorari review to the Mississippi Supreme Court. Phillips also raised a challenge to the
sufficiency of the evidence to support the sexual battery conviction in his state application for
A challenge to the sufficiency of the evidence can support a claim for habeas corpus
relief only when the evidence, viewed in the light most favorable to the State, is such that no
reasonable fact finder of fact “could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v.
Vargas-Ocampo, 711 F.3d 508 (5th Cir. 2013) (reaffirming the Jackson test for sufficiency of the
evidence). The Jackson standard “preserves the integrity of the trier of fact as the weigher of
the evidence.” Bujol v. Cain, 713 F.2d 112, 115 (5th Cir. 1983).
The trier of fact bears the responsibility to resolve conflicts in the testimony and “draw
reasonable inferences from basic facts to ultimate fact.” Jackson, 443 U.S. at 319. Jackson
allows the trier of fact to find the evidence sufficient to support a conviction, even if “the facts
also support one or more reasonable hypotheses consistent with the defendant’s claim of
innocence.” Gilley v. Collins, 968 F.2d 465, 468 (5th Cir. 1992). “[T]he jury – not the court –
[must] decide what conclusions should be drawn from evidence admitted at trial.” Parker v.
Matthews, 567 U.S. 37, 43 (2012) (quoting Cavazos v. Smith, 565 U.S. 1, 7 (2011)).
“Where a state appellate court has conducted a thorough review of the evidence . . . its
determination is entitled to great deference.” Callins v. Collins, 998 F.2d 269, 276 (5th Cir.
1993) (internal citation omitted). Claims of insufficient evidence “face a high bar in federal
habeas proceedings because they are subject to two layers of judicial deference.” Coleman v.
Johnson, 566 U.S. 650, 651 (2012). “[A] federal court may not overturn a state court decision
rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with
the state court.” Id. Instead, “a state-court decision rejecting a sufficiency challenge may not
be overturned on federal habeas unless the decision was objectively unreasonable.” Parker, 567
U.S. at 43 (quoting Cavazos, 565 U.S. at 7) (internal quotations omitted). “[T]he only question
under Jackson is whether [the jury’s] finding was so insupportable as to fall below the threshold
of bare rationality.” Coleman, 566 U.S. at 656.
The district court sitting in habeas corpus review must accept all credibility
determinations and conflicting inferences in favor of the jury’s verdict, Ramirez v. Dretke, 398
F.3d 691, 694 (5th Cir. 2005), including both direct and circumstantial evidence. Schrader v.
Whitley, 904 F.2d 282, 287 (5th Cir. 1990). During habeas corpus review, the district court must
defer to the trier of fact as to any conflicts requiring credibility determinations. Galvan v.
Cockrell, 293 F.3d 760, 764 (5th Cir. 2002).
Given the overwhelming evidence of Phillips’ guilt presented at trial, this ground for
relief is frivolous. Phillips was convicted for aggravated assault, kidnapping, and sexual battery.
On direct appeal, the Mississippi Court of Appeals addressed his claim that the evidence was
insufficient to support his convictions and sentences:
In reviewing the evidence in the light most favorable to the prosecution, we note
certain facts: Phillips stabbed [the victim] seventeen times with a knife; [the
victim] tried to escape two different times; the first time [the victim] attempted to
escape Phillips stabbed her in the back to the point where she lost consciousness;
on her second escape attempt, Phillips grabbed her, threw her on the couch and
threatened to kill her if she tried to escape again; by constantly exhibiting the
knife, Phillips forced Jane into the bathroom, confined her there against her will,
and again threatened to kill her if she tried to escape; Phillips digitally penetrated
Jane’s vagina and anus multiple times without her consent; and Phillips
repeatedly tried to rape Jane over the course of several hours. Based on the
record in this case and the applicable law, we find that the trial court committed
no error in denying Phillips’ motion for a JNOV.
Phillips, 263 So. 3d at 675 (¶ 30); see also generally, SCR, Vols. 3-5 at 103-317. Indeed, the
Court of Appeals mentioned only evidence gleaned from the victim’s testimony (which was
enough to make that finding.)
The jury could also consider the testimony of the victim’s friends (as to her injuries and
Phillips’ presence at the scene), the forensic evidence, and the voluminous evidence and
statements gathered by the investigators. The victim testified at length regarding the details of
the horrifying hours-long attack, including the sexual assaults, the fact that she was held against
her will, and the injuries she received. SCR, Vol. 3 at 103-161. In addition, the victim’s family
and friends testified regarding the bloody disorganized crime scene and the victim’s injuries, as
well as the fact that, when they arrived at the victim’s home, Phillips had retreated with the
victim to bathroom and locked the door in an attempt to keep her from escaping – or alerting
them as to her situation. SCR, Vol. 4 at 265-300; Vol. 5 at 301-03. Medical personnel also
testified regarding the victim’s extensive injuries and treatment, as well as the rape kit performed
at the hospital to collect evidence (SCR, Vol.4 at 162-77), and the State presented testimony
regarding forensic testing of the evidence collected and the results of that testing. Id. at 178222. Further, law enforcement officials testified with regard to their investigation and what they
found upon arrival at the scene, including testimony that Phillips was arrested in the woods near
the victim’s trailer, that Phillips had the victim’s cell phone in his possession, and regarding the
statement made by Phillips after his arrest. Id. at 226-64; Vol. 5 at 304-11.
To say the least, Phillips has not shown that the evidence, when viewed in the light most
favorable to the State, is such that no reasonable finder of fact could have found the essential
elements of the crimes beyond a reasonable doubt. As discussed above, the Mississippi Court of
Appeals thoroughly addressed Phillips’ claim challenging the sufficiency of the evidence in
Ground Four, and the Mississippi Supreme Court denied certiorari review of his claim. Further,
the Mississippi Supreme Court later denied the claim in Ground Four on post-conviction review
as barred by res judicata. Exhibit B. For these reasons, the state court was correct in finding
that there was sufficient evidence to support Phillips’ convictions and sentences.
Phillips has presented nothing in his petition to overcome the deference afforded to the
state courts’ holding. He has not shown that the state courts’ finding that his claim of
insufficiency of the evidence was meritless was contrary to, or an unreasonable application of,
clearly established federal law. In addition, he has not proven that the state court’s
determination of facts was unreasonable in light of the evidence presented. Given the vast
amount of evidence adduced against him at trial, the state court’s determination that Phillips’
challenge to the sufficiency of the evidence was without merit was reasonable. Phillips has not
met this burden – and certainly not with clear and convincing evidence. See Miller, 200 F.3d at
281; see also 28 U.S.C. § 2254(e)(1). As such, Phillips is not entitled to federal habeas corpus
relief as to his claim in Ground Four of the instant petition.
For the reasons set forth above, the instant petition for a writ of habeas corpus will be denied.
A final judgment consistent with this memorandum opinion will issue today.
SO ORDERED, this, the 15th day of November, 2023.
/s/ Sharion Aycock
U. S. DISTRICT JUDGE
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