Phillips v. Johnson

Filing 56

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jarrod Phillips. Signed by Magistrate Judge Michael R. Merz on 9/27/17. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JARROD PHILLIPS,

:
Petitioner,

Case No. 3:15-cv-1039

- vs -

Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Michael R. Merz

DEBRA K. JOHNSON, WARDEN,
Respondent.

:

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Petitioner filed
the Petition (ECF No. 1) and a Traverse (ECF No. 49). Respondent filed the state court record
(ECF No. 27) and the Answer/Return of Writ (ECF No. 28).
Phillips pleads the following Grounds for Relief:
GROUND ONE: "As a general rule, a trial judge may correct an
illegal, as opposed to a merely erroneous sentence at any time,
even if it has become final." State v. Burkhart, 566 S.W. 2d 871,
873 (Tenn. 1978); Davis v. State, 313 S.W. 3d 751, cert. den.
(2010), WL 3321488; Hart v. State, 21 S. W 3d 901, 902 (Tenn.
2000). The challenge to Petitioner's sentence is not that he could
plead guilty to a sentence of thirty-two (32) years for a Class A
felony. It is abundantly clear that the State of Tennessee's position
is that a Class A felony sentence "range" is from "not less than 15
years to not more than 60 years." [Tenn. Code Anno. Section 4035-111 (b)(J)]
However, the Sentence Reform Act of 1989 specifically provides
that sentences fall under one of three categories, and this condition
is based on the number and severity of his priors and the offense
for which the defendant is found guilty. The Petitioner is found
guilty of 2nd degree murder. He had one prior for a Class C felony,
for which he received probation.

1

The fact that ordinarily, considering the relevant requirements of
the law applicable to "Range I" sentences, is that because he had
only one ''prior" offense, his sentence range is "not less than 15 nor
more than 25 years" [Tenn. Code Anno. 40-35-112(a)(J) But, the
usurpation of due process is to be compared to the other relevant
fact that Petitioner received a sentence within Range II, which the
State of Tennessee describes as a ''best interest plea", of 32 years
for 2nd degree murder.
The sentence he received is challenged because of the denials of
due process attendant to the guilty plea hearing which resulted in
his guilty plea. Petitioner would add however, that the essential
question is latent in the nature of the guilty plea, that resulted in
him being sentenced outside Range I. The Sentencing Reform Act
of 1989 factors governing sentences in the state of Tennessee for a
Range I sentence, provide that Petitioner's sentence may fall within
one of three categories of Range I, Range II or Range III,
depending on his priors and the validity of a waiver of the
defendant's right to be sentenced according to the lawful Range.
T.C.A. § 40-35-210(b). See State v. Ashby, 823 S. W. 2d 166
(Tenn. 1991). Further, for a Class A sentence for the offense of
2nd degree murder, to exceed 25 years it must fall in Range II or
Range III. Range II sentences begin at 25 years to 40 years.
According to law, petitioner had to be sentenced as a Range I
offender, unless he was informed he was being sentenced as a
Range II or Range III offender felony class, for 2nd degree murder,
even though Range II "multiple" offender requires ''2-4 priors",
according to the Sentence Reform Act. [T.C.A. § 40-35-106(a)].
GROUND TWO: ''A 'knowing' waiver is one that is "made with
full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it." State v.
Stephenson, 878 S. W 2d 530, 544-45, citing, Fare v. Michael C.,
442 US. 707 (1970); North Carolina v. Butler, 441 U.S. 369
(1979). In petitioner's case, there is no evidence on the record that
he waived his rights knowingly and intelligently, as there was no
discussion of the nature of the "best interest" sentence's illegality
that was being waived. Further, the 32 year sentence at 100% is
equivalent to a LIFE sentence in 2009. Life sentences in Tennessee
equal thirty-six calendar years with a minimum of twenty-five
years before release eligibility. {T.C.A. §§ 40-28-116; 40-35-501
(h)(l): "Release eligibility for each defendant receiving a life
sentence of imprisonment for first degree murder shall occur after
service of sixty (60%) of sixty (60) years less sentence credits
earned and retained by the defendant, but in no event shall a
defendant sent to imprisonment for life be eligible for parole until
2

the defendant has served a minimum of twenty-five (25) full
calendar years of the sentence.... "
In Tennessee, "... waiver will not be presumed where there is no
evidence ... to indicate that the appellant was made aware of the
issue. " See also United States v. Young, 73 F. Supp. 2d 1014, 1024
(N.D. Iowa 1999); State v. McClintock, 732 S. W. 2d 268 (Tenn.
1987); State v. Mackey, 553 S. W. 337 (Tenn. 1977); Boykin v.
Alabama, 395 US 238, 89 S.Ct. 1709. In Mackey, supra, the court
found that under Boykin v. Alabama, a defendant waives numerous
constitutional rights upon a plea of guilt. These rights cannot be
waived unless there is an affirmative showing that the guilty plea
was intelligent and knowingly made.
The affirmative showing can only be met by the trial court's
questioning and advising the accused of the significant
consequences of a guilty plea. In Tennessee, Mackey imposed on
trial court's even stricter standards than those mandated by the gold
standard in Boykin, which included specific warnings and advice
which the defendant must receive as part of his plea. See Tenn.
Rule of Criminal Procedure Rule 11. See also Brady v. United
States, 397 US. 742, 747 (1990). Best interest was written at some
point in time on the judgment form, but the 4 comers of the form
do not contain any signature or proof that Rule 11 was complied
with. According to Rule 11, T.R.Crim. P., a sentence is a form of
trial... as such the Defendant's right to be heard, to have the
sentence of "best interest" explained to him, to have the "waiver"
explained to him. A defendant cannot waive rights he didn't know
he had. Cf. Taylor v. State, 2013 WL 6797398, citing, State v.
Muse, 967 S. W. 2d 764, 768; Tears v. State, 2013 WL 6405734
(12-6-13). T.R. Crim. P. 11 (b)(J)(H)(l).
Petitioner submits that the sentencing judge did not "insure that the
plea was voluntary". Id. T.R. Crim. P. 11 (b)(2). This omission
constitutes a denial of due process of law. Petitioner is not
contending that he could or could not be sentenced to the "statutory
minimum and maximum sentences for a particular sentencing
range...: See Phillips v. State, No. M20 l 3-02026-CCA-R3-HC; 42314) Petitioner[sic] claim is that no one explained the real
meaning of his so-called "Best Interest" plea and especially the
meaning of his waiving his right to be sentenced within the Range
II sentence range for a conviction of 2nd degree murder.
Tennessee judicial system has strong legal structure for substantive
and procedural due process in order for a defendant to plead guilty,
in particular to the particular plea known as a ''best interest" plea
3

outside the sentence range provided by law for the defendant. See
State v. McClintock, 732 S.W. 2d 268 (Tenn. 1987) In this case,
the state's prosecutor was the only source for which any reference
to a ''best interest plea" was made:
Judge, on his plea of guilty to-- I think he is going
to plead this as a best interest plea of guilty of
second degree murder. The defendant would also
waive his range of punishment on that for a total
sentence of 32 years at 100 percent.
[pg. 8, Ins. 4-8, Guilty Plea Hearing Transcript, Case No. 2009-D3454; Criminal Court for Davidson County, Tennessee, Division
IV]
The State claims "A defendant who is a multiple offender shall
receive a sentence within Range II which is 25 to 40 years for a
Class A felony. Tennessee Code Annotated § 40-35-106 ©[sic], 112(b)(l)." However, the law requires that a "multiple offender
must have that classification found by the court beyond a
reasonable doubt", (Id.), and the district attorney general was
required to file a statement that he believes the defendant should be
sentenced as a multiple offender" See T.C.A. § 40-35-202(a)
GROUND THREE: Petitioner had not received constitutionally
effective assistance of counsel during the penalty phase in part
because of Defense Counsel's failure to adequately investigate
and present mitigating circumstances during the penalty hearing.
The issue of ineffectiveness of counsel goes directly to sentencing.
One of the most important functions of the defense lawyer is to
represent the client zealously at the sentencing hearing. Cf Wiggins
v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527 (2003): [counsel's
failure to investigate and present mitigating circumstances during
the penalty phase deprived defendant of effective assistance of
counsel]. A defendant can be sentenced within Range II only if he
is found to be a "multiple offender", or is found to have committed
an especially aggravated offense. T.C.A. § 40-35-202(b)(2). The
Petitioner's trial attorney Public Defender Ms. Dykes, the State's
attorney and the trial Court are all state actors. In Coffman v.
Bomar, 220 F.Supp. 343, the court held that "any default of court
appointed counsel in Tennessee criminal case must be attributed to
State in testing application of Fourteenth Amendment". U.S.C.A.
Const. Amend 14. Petitioner plight fell under either a "mitigated"
offender or at the most a "standard" Range I offender.

4

GROUND FOUR: A guilty plea must be voluntarily,
understandingly and knowingly entered. Boykin v. Alabama, 395
U.S. 238, 242, 89 S.Ct. 1709 (1969); State v. Mackey, 553 S. W.
2d 337 (Tenn. 1977); Lane v. State, 316 S. W. 3d 555, 562 (Tenn.
2010). A plea is not "voluntary" if it results from ignorance,
misunderstanding ...." Blankenship v. State, 858 S.W. 2d 897. In
that sense, petitioner's sentence was not voluntary.
Petitioner was by law a "Range I" offender, even facing the charge
of 1st degree murder. When he was offered the plea to 2nd degree
no one explained nor did he understand that a conviction for 2nd
degree murder by best interest guilty plea can be sentenced as a
Range I or Range II sentence, even though he rightly belongs in
range I for that offense. When he was offered the plea to 2nd
degree, he agreed because it was a lesser charge, not because he
was willing to be sentenced outside the range for that offense. This
was his complete understanding.
As to Range I or Range II, he had no knowledge of how he could
or would be sentenced in terms of the sentencing ranges. Petitioner
could still have entered a "best interest" plea to 2nd degree murder
as Range I. Cf in the Tennessee case of Demarcus Sanders v. State,
(No. W201 2-01685-CCA-R3-PC; 2013 WL 6021415, Tenn. Crim.
App. Nov. 8, 2013) where that defendant received a "25 year
sentence" - the maximum for "Range I" - for 2nd degree murder.
Id. At *2.
Only after his plea was entered and long after he was sentenced,
did he come to know that the sentence he received of 32 years, was
in excess of the amount of time he would have received based on
the statutory guidelines of priors as a Range I sentence. When or
where did petitioner affirm that he understood the different "ranges
of punishment which he was essentially waiving", (No. M201302026-CCA-R3-HC), when the record is devoid of how this
required understanding was had? The Criminal Court of Appeals
opinion that the Defendant "... affirmed that he understood the
charges against him and their respective range of punishment".
Petitioner did not understand that he would be pleading guilty to a
sentence in a "Range" beyond what his criminal history allowed.
GROUND FIVE: "A void judgment is one in which the judgment
is facially invalid because the court lacked jurisdiction or authority
to render the judgment or because the court lacked jurisdiction or
authority to render the judgment or because the defendant's
sentence is expired." Taylor v. State, 995 S.W. 2d 78, 83 (Tenn.
1999); State v. McConnell, 12 S.W. 3d 795, 797.
5

The trial court lost jurisdiction by violating his procedural and
substantive constitutional rights to sentence him under the statute
for multiple offender. Pursuant to T.C.A. § 40-35-106©[sic], "A
defendant who is found by the court beyond a reasonable doubt to
be a multiple offender shall receive a sentence within Range II."
And yet, petitioner received "a sentence within Range II", without
the court's finding "beyond a reasonable doubt'', that he is a
"multiple offender".
This omission clearly proves the court lost its jurisdiction to
sentence Petitioner to a Range II sentence. See State v. Ritchie, 20
S. W. 3d 624, 630 (Tenn. 2000) (quoting Archer v. State, 851 S.W.
2d 157, 158 (Tenn. 1993).
"Subject matter jurisdiction concerns the court's authority to
adjudicate a matter. Jacob v. Partee, citing, In re Estate of Trigg,
368 S. W. 3d 483, 489 (Tenn. 2012). Jurisdiction is conferred by
statute and by the constitution of the United States, and cannot be
waived or conferred by the parties by silence, consent, or plea. Id.
An order of a court acting without subject matter jurisdiction is
void. Id. -The question of subject matter jurisdiction may be raised
at any time in any court." Partee, supra, 2013 WL 5817450 (1030-13), @#2, citing, Freeman v. CSX Transp. Inc., 359 S.W. 3d
171, 176 (Tenn. Ct. App. 2010); See also May v. Carlton, 245 S.
W. 3d 340, 344 (Tenn. 2008) citing, State v. Burkhart, 566 S. W.
2d 871, 873 [Tenn. 1978]: "An illegal sentence, one whose
imposition directly contravenes a statute, is considered void and
may be set aside at any time. "
Petitioner contends that the only way the State of Tennessee can
justify sentencing him beyond his lawful range for punishment, is
that someone, anyone, came forward and upon the record in open
court, clearly established that they informed the Defendant that
"this is a Range I sentence and this is a Range II sentence.
Although you are (otherwise) a "Range I” offender, you are being
sentenced as a "Range II" offender because you could have been
facing a greater sentence had you enjoyed your right to a jury trial
and the jury found you guilty beyond a reasonable doubt." The
record does not reveal this kind of instruction or admonishment by
the sentencing court or by defense counsel.
The State was quoted in the Criminal Court of Appeals Opinion
(Id., pg. I; No. M2013-02026-CCA-R3-HC; 4-23-14) "Judgment
(form) specifically 'stated' that, "Defendant waives range of
punishment for Murder 2nd & will receive 32 yrs as Range 2.” (No.
6

M2013-02026-CCA-R3-HC. Other than this "judgment" form,
which was not signed by counsel or petitioner, nowhere in the
State's "offer of proof' does anyone state on the record that
Petitioner was advised that "you are a Range I offender, but you
are waiving that range of punishment, in order to be sentenced to a
'total sentence of 32 years at 100 percent at Range II". This sort of
explanation is the only way the State can fairly say that the
Petitioner knowingly and understandingly waived his right to be
sentenced for 2nd degree murder, outside of his Range.
His prior criminal history established that he was more correctly a
Range I offender, and he could still have received a maximum
sentence of 25 years, and been a "best interest" plea due to the
degree of offense, not the sentence outside the range. A plea
bargain also results in a lesser included offense.
GROUND SIX: Whether the trial court dismissal without reliance
on the guilty plea hearing transcript was an abuse of discretion.
What the· sentencing court noted on the judgment form that the
petitioner had "waive[ d] range of punishment for murder 2nd and
will receive 32 years as Range 2", was not known by petitioner
until after he got to prison and a counselor gave him a copy of his
judgment. (See State's Motion to Dismiss, 8-14-2013, Case No. 13CV-39). Petitioner did not voluntarily, knowingly and intelligently
waive his rights. U.S. Const. Amend. 5; Const. Art. I § 9, where he
did not have a "rational as well as factual understanding of the
proceedings: State v. Blackstock, 19 S. W,. 3d 200, 205, citing,
Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789 (1960).
The State is attempting to parlay the writing on a judgment "form"
that was not signed by petitioner or his attorney, as equivalent to
the U.S. Supreme Court requirement that waiver must be in open
court. North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin,
supra, 395 U.S. at 244. "in considering the validity of a judgment,
an examination of the underlying record is appropriate in habeas
corpus proceedings." Dykes v. Compton, 978 S.W. 2d 528, 529
(Tenn. 1998). A trial court abuses its discretion when it causes an
injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment
of the evidence, or relies on reasoning that causes an injustice."
Dickson v. Kriger, 2012 WL426601; Gonsewski v. Gonsewski, 350
S.W. 3d 99,105 (Tenn. 2011).
The sentencing State court did not follow the statutory sentencing
procedure, did not make findings of fact that are adequately
7

supported in the record, and did not give due consideration to the
factors and principles that are relevant to sentencing under the
Tennessee Sentence Reform Act of 1989. T.C.A. § 40-35-117; §
40-35-112. (Sentence ranges) The sentencing court abused its
discretion in sentencing him to a sentence outside of Range I and
outside of his knowledge and understanding.
In order to ensure that a defendant understands the constitutional
rights being relinquished, the trial court must advise the defendant
of the consequences of a guilty plea, and determine whether the
defendant understands those consequences. Boykin, 395 U.S. at
244. Blankenship v. State, 858 S.W. 2d 897, 904 (Tenn. 1993).
GROUND SEVEN: Whether the defendant received “NOTICE”
from the State of Tennessee that his plea was a best interest plea
rather than a guilty plea? Amend, 5, 6, 14. Tennessee.
However, the State's attorney was not the one who was charged
with the duty of explaining to petitioner what rights he was
waiving with respect to this particular plea. Note that there is no
reference by the State's district attorney general to Range I or
Range II. And nothing whatsoever from the trial Court Judge.
What the district attorney general was required to do by law as a
matter of due process to the defendant, is provided by statute
T.C.A. § 40-35-202 (a):
If the district attorney general believes that a defendant
should be sentenced as a multiple, persistent or career
offender, the district attorney general shall file a statement
thereof with the court and defense counsel not less than ten
(10) days before trial or acceptance of a guilty plea;
provided, that notice may be waived by the defendant in
writing with the consent of the district attorney general and
the court accepting the plea. "
T.C.A. § 40-35-202 (a).
It is not the State's district attorney general's duty to provide that
the Defendant's plea be knowingly, understandingly and
intelligently made. Yet, in this case, the only reference at all to the
sentence petitioner received, was made by the court, and the
reference was to the "nulled" charge of "Count III". (See pg. 5, Ins.
4-5) No reference to the charge or sentence received. What makes
the sentence unconstitutional is the absence from the trial court, to
the Defendant advising him of the nature of the plea in terms of the
sentence. The State takes a look at it, but in no way can the
8

uncertain characterization of the State fulfill the requirements of
the law:
"I think he is going to plea
This as a best interest plea". [lns. 4-5, pg. 8)
The significance of these glaring denials of petitioner's
constitutional federal 5th, 6th and 14th amendment rights to notice,
equal protection and to due process of law, is that had the district
attorney general put Petitioner on "notice" that he "believes that a
defendant should be sentenced as a multiple ... offender" we may
not be having this argument now.
Putting petitioner on notice that he would be sentenced as a Range
II multiple offender as required by T.C.A. § 40-35-202 (a), may
well have brought with it an explanation that (1) petitioner did not
meet the statutory number of priors to otherwise plead guilty to a
sentence of 32 years, and (2) the State intended nonetheless to
induce him as a Range II offender as part of the "best interest" plea
bargain, and reduce the offense in lieu of giving up his rights to
trial by jury, the presumption of innocence, right to counsel during
trial, right to direct appeal, to witnesses in his own behalf, and to
cross examine any adversarial witnesses, and of course the right
not to be compelled to be a witness against himself.
GROUND EIGHT: Whether the petitioner knowingly
understanding and intelligently pled guilty to an out of range
sentence of 32 years at 100% as a Range I offender? The judgment
form is void of proof that the Petitioner knowingly accepted the
terms of the expressed judgment.
Only the signature of the prosecutor and the judge are preserved on
the form. Petitioner contends that because of the illegality of his
sentence, his sentence should be set aside: "Due process provision
of Federal Constitution requires that pleas of guilty be knowing
and voluntary; a knowing and voluntary guilty plea includes the
intentional relinquishment or abandonment of known rights."
Johnson v. State, 834 S. W 2d 922 (Tenn. 1992):("... knowing and
intelligent waiver of fundamental rights''). The United States
Supreme Court has provided the essential requirements in order for
a guilty plea to be knowingly, understandingly, and intelligently
made, in order for the State to rest on its conclusion that there was
an "intentional abandonment of a constitutional right." Johnson v.
Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019 (1938) [Relinquishment
of certain constitutional rights including right against self
incrimination will not be presumed from silent record; therefore
9

unless there is affirmative showing that plea was knowing and
voluntary, guilty plea may be vacated upon collateral attack. Id.]
See State v. Mellon, 118 S.W. 3d 340, 345 (Tenn. 2003); State v.
Mackey, 553 S.W. 2d at 340.
GROUND NINE: Whether defense counsel explained to the
Defendant the difference between a Range I and Range II
sentence? Counsel was never asked in open court did he explain to
the Defendant, the "best interest plea" to a sentence beyond the
range I for a Class A offense.
There is nothing in the record or the face of the judgment form that
suggests his sentence resulted from negotiations between counsel,
the district attorney general, and petitioner. In spite of the esoteric
term "best interest", the hidden reality is that this excessive
sentence is equivalent to a Life sentence in 2009. The services
rendered by trial Counsel were deficient and the deficient
performance was prejudicial. The Petitioner has shown that the
services rendered and the advice given was below the range of
competence demanded of attorneys in criminal cases resulting in
guilty pleas.
A manifest injustice would result if his sentence is not reduced to
no more than the statutory maximum for Range I. The trial court
did not inform him at the hearing that he was being sentenced
outside the range established by his one prior conviction. Petitioner
was ignorant of the range of punishment he should have received.
See Lane v. Sate[sic], 316 S.W. 3d 555, 563 (2010); State v.
Wilson, 31 S. W 3d 189, 183 (Tenn. 2000), superseding State v.
Mackey, on other grounds.
GROUND TEN: Whether the trial Court explained to the
Defendant the difference between range I and Range II sentence?
The petitioner was never asked in open court did he understand he
was pleading guilty outside of the Range I classification that he
would fall in pursuant to the sentencing statute. "A judgment
imposed by a trial court in direct contravention of express statutory
provision regarding sentencing is illegal and is subject to being set
aside at any time, even if it has become final. " McLaney v. Bell,
59 S. W 3d 90; T.C.A.§ 40-35-112. The only query directed to the
understanding petitioner received from defense counsel Ms. Laura
Dykes, regarding the ''best interest plea" agreement, made by the
sentencing Judge, that appears on the record of the Guilty Plea
Hearing transcript is:

10

The Court: Do you understand the plea bargain
arrangement that Ms. Dykes has worked out for you in this
matter?
"The Defendant: Yes, sir.
"The Court: All right. Your plea to murder, guilty or not
guilty?
Ms. Dykes: Second degree“The Court: Second degree murder that is, guilty or not
guilty?
The Defendant: Guilty
"The Court: The Court finds that there is a factual basis for
the plea. The plea is voluntarily entered."

Pg. 11, Ins 1-20, (Guilty Plea Hearing Transcript, 1-25-2012)(Case
No. 2009-D-3454)
"The trial court must address the defendant to make sure that the
defendant is aware of what the plea connotes and of its
consequences. State v. Robinette, 2015 WL 4745065,@ *7;
Blankenship v. State, 858 S.W. 2d 897, 904 (Tenn. 1993). Clearly
these prerequisites were not complied with by the sentencing court
at petitioner's sentencing hearing.
Petitioner had one prior contact with the judicial system, which
resulted in a probation for a Class "C" felony. He has no juvenile
history. The requirements of the law provided that the trial Court
explain to the defendant that he was to be sentenced to a greater
sentence that he would have expected to receive as a "Range I"
offender for 2nd degree murder, but that he would still receive less
time that he would have if he had gone to trial and if he had been
convicted of 1st degree murder.
What the trial court failed to do in this instance is determine if the
guilty plea was "knowing" by questioning and explaining to
petitioner to make sure he fully understood the plea and the penal
consequences. State v. Pettus, 986 S. W 2d at 542; State v.
Blankenship, at 858 S. W 2d at 904. Not once did the trial court
advise petitioner that he was waiving the particular due process

11

claims herein, and whether he was begin sentenced beyond the
proper classification or the charge.
Petitioner's sentence for 2nd degree does fall under Range I
sentencing guidelines. The State of Tennessee had a duty to inform
him that he would ordinarily be sentenced to the reduced charge of
2nd degree murder at Range I, of no less than 15 nor more than 25
years, that he would nonetheless receive a sentence beyond Range
I as a part of the plea agreement, "waive his range of punishment
on that. .. " Petitioner was never informed that he was waiving his
right to be sentenced under "RANGE I". A petitioner cannot
waive a right he never knew he had. "In order to waive the right, a
defendant must (1) know of the right and (2) personally waive it in
writing or on the record .... " Taylor v. State, supra; State v. Muse,
supra; Tears v. State, supra. See also Tenn. R. Crim. P. 11 (b)(l),
which requires the trial court to determine that the defendant
understands:
(A) The nature of the charge to which the plea is offered
(B) The maximum possible penalty and any mandatory
minimum penalty."
(Petition, ECF No. 1, PageID 1-17.)
In his Reply, Phillips summarizes his claims as follows:

ISSUE 1: THE PETITIONER'S SENTENCE IS ILLEGAL
BECAUSE HE DID NOT HAVE THE REQUISITE NUMBER
OF PRIOR CONVICTIONS TO QUALIFY AS A RANGE II
OFFENDER AND DID NOT KNOWINGLY WAIVE HIS
RIGHT TO BE SENTENCED ACCORDINGLY TO HIS
LAWFUL RANGE.
ISSUE 2:. THE PETITIONER DID NOT KNOWINGLY WAIVE
HIS RIGHTS WHEN HE PLED GUILTY, RENDERING HIS
PLEA INVOLUNTARY.
a. NO ONE EXPLAINED THE MEANING OF A “BEST
INTEREST"
b. NO ONE EXPLAINED THE MEANING OF HIS WAIVER OF
HIS RIGHT TO BE SENTENCED AS A RANGE I OFFENDER.
ISSUE 3: THE PETITIONER RECEIVED THE INEFFECTIVE
ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE
TO ADEQUATELY INVESTIGATE AND PRESENT
12

MITIGATING EVIDENCE DURING THE SENTENCING
HEARING.
ISSUE 4: THE PETITIONER'S GUILTY PLEA WAS NOT
KNOWING AND VOLUNTARY.
ISSUE 5: THE TRIAL COURT LACKED JURISDITCTION [sic]
TO SENTENCE THE PETITIONER BECAUSE IT DID NOT
FIND BEYOND A REASONABLE DOUBT THAT THE
PETITIONER WAS A RANGE II OFFENDER.
ISSUE
6:
THE
TRIAL
COURT
ABUSED
ITS
DISCRETIONH[sic]
WHEN
IT
DISMISSED
THE
PETITIONER'S STATE HABEAS PETITION WITHOUT
RELYING ON THE TRANSCRIPT OF THE GUILTY PLEA
HEARING.
ISSUE 7: THE PETITIONER DID NOT RECEIVE NOTICE
FROM THE STATE THAT HIS PLEA WAS A BEST
INTEREST PLEA.
ISSUE 8: THE PETITIONER DID NOT KNOWINGLY,
UNDERSTANDINGLY, AND INTELLIGENTLY PLEAD
GUILTY TO AN OUT-OF-RANGE SENTENCE.
ISSUE 9: TRIAL COUNSEL FAILED TO EXPLAIN THE
DIFFERENT[sic] BETWEEN A RANGE I AND RANGE II
SENTENCE TO THE PETITIONER.
ISSUE 10: THE TRIAL COURT FAILED TO EXPLAIN THE
DIFFERENT[sic] BETWEEN A RANGE I AND RANGE II
SENTENCE TO THE PETITIONER.
(ECF No. 49, PageID 438.)

Procedural and Factual History

13

Phillips was indicted by the Davidson County Grand Jury in 2009 on one count of first
degree murder in violation of Tennessee Code Annotated §39-13-202, one count of especially
aggravated robbery in violation of Tennessee Code Annotated §39-13-403, and one count of
felony murder in violation of Tennessee Code Annotated §39-13-202 (State Court Record, ECF
No. 27, PageID 84). On January 25, 2012, Phillips, with the assistance of counsel, entered a
plea to a single count of second degree murder and the trial court sentenced Petitioner as a range
II offender to 32 years imprisonment at 100% release eligibility (State Court Record, ECF 27,
PageID 166). No motion to withdraw guilty plea or appeal was filed and the judgment became
final on February 24, 2012.
On October 18, 2012, the petitioner filed a pro se petition for post-conviction relief,
arguing that his guilty plea was not knowing and voluntary and that he received ineffective
assistance of counsel (State Court Record, ECF No. 27, PageID 90). The post-conviction court
appointed counsel who filed an amended petition (State Court Record, ECF No. 27, PageID 95).
Following a hearing, the post-conviction court denied the petition for post-conviction relief
(State Court Record, ECF No. 27, PageID 103). The petitioner appealed and after briefing, the
Tennessee Court of Criminal Appeals affirmed the judgment of the post-conviction court.
Phillips v. State, No. M2014-01374-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 271 (April 15,
2015)(copy at ECF No. 27-6, PageID 204, et seq.)(“Phillips II”).
On July 15, 2013, Phillips filed a state petition for writ of habeas corpus.

The

Respondent moved to dismiss and the court granted the motion (State Court Record, ECF No.
27, PageID 285). On appeal, the Tennessee Court of Criminal Appeals affirmed the dismissal of
the petition. Phillips v. State, 2014 WL 1663109, at *1 (Tenn. Crim. App. April 23, 2014), perm.

14

app. denied (Tenn. Sept. 22, 2014)(“Phillips I”).
On September 28, 2015, the petitioner filed the instant federal habeas case.

Analysis

Ground One: Unlawful Sentence as a Range II Offender Because Guilty Plea Invalid

In his First Ground for Relief, Phillips claims his sentence as a Range II offender is
invalid because his guilty plea was not knowing, intelligent, and voluntary, as required by Boykin
v. Alabama, 395 U.S. 238, 242-44 (1969)(Reply, ECF No. 49, PageID 441).

Respondent

concedes that this claim was properly exhausted in the Tennessee state courts and asserts the
decision of the Tennessee Court of Criminal Appeals on this claim in Phillips II is entitled to
deference under 28 U.S.C. § 2254(d)(1). Phillips replies that the court of appeals decision is
contrary to or an unreasonable application of Supreme Court precedent, without citing any
precedent other than Boykin, supra (Reply, ECF No. 49, PageID 442).
In his post-conviction petition, Phillips claimed both that his plea was unknowing and
involuntary and that he received ineffective assistance of trial counsel in the plea proceedings.
The court of appeals found that during the plea colloquy the trial judge explained to Phillips the
rights he was waiving which he said he understood. Phillips II at *2. He indicated he was
satisfied with the representation he had received and understood the possible ranges of
punishment, including that he could be sentenced to life imprisonment if convicted as originally
charged. Id. The prosecutor announced in open court that the plea offer was a “best interest plea
15

of guilty of second degree murder. [Phillips] would also waive his range of punishment on that
for a total sentence of 32 years at 100 percent.” Id. at *13. The court of appeals findings were
based on a “detailed written order” from the trial court, entered after an evidentiary hearing at
which Phillips was represented by counsel and at which both he and his trial attorney testified.
Applying both Boykin and Tennessee case law following Boykin, the court of appeals affirmed
denial of post-conviction relief. It noted the statements made at the plea and their importance:
Statements made by a petitioner, his attorney, and the prosecutor
during the plea colloquy, as well as any findings made by the trial
court in accepting the plea, “constitute a formidable barrier in any
subsequent collateral proceedings.” Blackledge v. Allison, 431
U.S. 63, 73-74 (1977). Statements made in open court carry a
strong presumption of truth, and to overcome such presumption, a
petitioner must present more than “conculsory [sic] allegations
unsupported by specifics.” Id. at 74.
Phillips II at **12-13. On the out-of-range sentence issues, it found:
First, the Petitioner claims that, at the time he pleaded guilty, he
did not understand that he was pleading out-of-range as a Range II
offender. However, trial counsel testified that, even though she
may not have used the term “range,” she explained to the Petitioner
why the plea agreement contained a 32-year sentence as opposed
to a potential maximum sentence of 25 years. Additionally, before
the Petitioner accepted the plea in court, the State made an offer a
proof and said, “The [Petitioner] would also waive his range of
punishment on that for a total sentence of 32 years at 100%.”
Moreover, immediately above the Petitioner’s signature, the
Petition to Enter a Guilty Plea clearly states, “Best Interest Guilty
Plea to count 1 reduced to Second Degree murder. 32 years at
100%. [The Petitioner] agrees to sentence outside of range I.
Dismiss counts 2 & 3.” During the plea colloquy, the Petitioner
affirmed that he freely and voluntarily signed the plea petition and
that he had “had plenty of time to go over it” with trial counsel. At
no point did the Petitioner ask for clarification about the range
classification. Based on this evidence, the Petitioner is not
entitled to relief.
Phillips II, supra, at *13.
When a state court decides on the merits a federal constitutional claim later presented to a
16

federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and
intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S.
742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151
(6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726
F.2d 1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made
depends upon the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S.
458, 463 (1938); Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993).
A plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their
nature improper as having no proper relationship to the
prosecutor's business (e. g. bribes).

Brady v. United States, 397 U.S. 742, 755 (1970). The voluntariness of a guilty or no contest
plea is determined in light of all relevant circumstances surrounding the plea. Brady, 397 U.S. at
749.
If a prosecutor’s promise is illusory, then a plea is involuntary and unknowing. United
States v. Randolph, 230 F.3d 243, 250–51 (6th Cir. 2000). However, where a defendant is “fully
aware of the likely consequences” of a plea, it is not unfair to expect him to live with those

17

consequences. Mabry v. Johnson, 467 U.S. 504, 511 (1984). A plea-proceeding transcript which
suggests that a guilty or no contest plea was made voluntarily and knowingly creates a “heavy
burden” for a petitioner seeking to overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326–28
(6th Cir. 1993). Where the transcript shows that the guilty or no contest plea was voluntary and
intelligent, a presumption of correctness attaches to the state court findings of fact and to the
judgment itself. Id. at 326–27.
A court cannot rely on the petitioner’s alleged “subjective impression” “rather than the
bargain actually outlined in the record,” for to do so would render the plea colloquy process
meaningless. Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process
were viewed in this light, any defendant who alleged that he believed the plea bargain was
different from that outlined in the record would have the option of withdrawing his plea despite
his own statements during the plea colloquy indicating the opposite. Id.
Phillips received a constitutionally adequate explanation of the plea he was entering and
the rights being waived by doing so. He said he understood and will not be heard now to
contradict that solemn statement in open court. He has not shown that the Tennessee Court of
Criminal Appeals decision is in any way an objectively unreasonable application of Boykin or
other Supreme Court precedent.
Phillips’ First Ground for Relief should be denied on the merits.

Ground Two: Invalid Guilty Plea

In his Second Ground for Relief, Phillips again asserts his guilty plea was invalid for

18

omission of particular parts of the plea bargain process, to wit, not explaining what a “best
interest” plea was and not explaining what it meant to waive his right to be sentenced as a Range
I offender.
Respondent asserts this claim is procedurally defaulted because it was not present in
these exact terms to the Court of Criminal Appeals (Return, ECF No. 28, PageID 359-60).
However, the Magistrate Judge finds the appellate court made the relevant findings in the portion
of its decision quoted above where it found that the practical effect of the plea agreement was
explained – a guilty plea to second-degree murder with a sentence “outside of range 1” at 32
years and it also found Phillips signed the Petition to Enter a Guilty Plea with that language in it.
That constitutes an objectively reasonable decision on the merits of this claim under Boykin,
supra, for the same reasons given above as to Ground One. Again, when an explanation of a
plea is made in open court and a defendant says he understands and does not ask any questions,
he will not be heard later to say he didn’t understand.
Ground Two should be dismissed on the merits.

Ground Three: Ineffective Assistance of Trial Counsel in the Plea Process

In his Third Ground for Relief, Phillips asserts he received ineffective assistance of trial
counsel from his trial attorney in the sentencing hearing by failing to adequately investigate and
present mitigating evidence.
Respondent asserts this claim for relief is barred by Phillips’ procedural default in
presenting it to the Tennessee courts, to wit, by raising it for the first time on appeal from denial
of his state habeas corpus petition (Return, ECF No. 28, PageID 361-62). Phillips concedes that

19

is when he first presented it, but asserts he can show the requisite cause and prejudice by
asserting ineffective assistance of post-conviction counsel.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the

20

remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner can overcome a
procedural default by showing cause for the default and prejudice from the asserted error. Atkins
v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Phillips begins by asserting “it was Post-Conviction counsel’s duty in raising this issue at
Post-Conviction hearing and appeal. Post-Conviction Counsel was ineffective was cause [sic]
21

and such failure prejudiced Petitioner under Sutton v. Carpenter, 745 F.3d 787, 792 (holding that
Martinez and Trevino apply in Tennessee.”) (Reply, ECF No. 49, PageID 447). While that is the
correct holding in Sutton, it is of no help to Phillips here. The court of appeals did not find
Phillips had defaulted this claim by failing to raise it in post-conviction. Instead, it found the
claim was raised for the first time on appeal from denial of state habeas corpus and was defaulted
because it had not been raised in the petition. As quoted in the Return, the court held:
Petitioner also presents other arguments on appeal. These
arguments were not presented to the habeas corpus court below.
When a petitioner raises an issue for the first time on appeal, that
issue is waived. See Black v. Blount, 938 S.W.2d 394, 403 (Tenn.
1996). In addition, a petitioner may not change theories between
the lower court and the appellate court. State v. Alder, 71 S.W.3d
299, 303 (Tenn. Crim. App. 2001). Because Petitioner did not
allege these issues in his habeas corpus petition or raise them
during the hearing, the habeas corpus court did not address these
issues in its order. Therefore, these issues are waived.

(Return, ECF No. 28, at PageID 361, quoting Phillips I, 2014 Tenn. Crim. App. LEXIS 389, *
8.) Like most other States, Tennessee has a rule that a litigant may not raise on appeal an issue
he or she has not presented to the court below. It enforced that rule against Phillips here and he
has not shown excusing cause and prejudice for failing to raise it in the court below.
Phillips’ Third Ground for Relief should be dismissed as procedurally defaulted.

Ground Four: Invalid Guilty Plea

In his Fourth Ground for Relief, Phillips again asserts his guilty plea was not knowing

22

and voluntary. For the reasons given above as to Ground One, this ground for relief is without
merit because the Tennessee Court of Criminal Appeals decision is an objectively reasonable
application of Boykin, supra. Ground Four should be dismissed.

Ground Five: Lack of Subject Matter Jurisdiction to Sentence

In his Fifth Ground for Relief, Phillips asserts the trial court lacked subject matter
jurisdiction to sentence him as it did because it did not find beyond a reasonable doubt that he
was a range II offender.
Respondent asserts this ground for relief is procedurally defaulted because it was never
presented to the Court of Criminal Appeals on either the post-conviction or the state habeas
appeal (Return, ECF No. 28, PageID 362-63).
Phillips responds that he has consistently claimed that his plea was illegal and this
“Issue/Claim #5 is a part of the illegality of his plea.” (Reply, ECF No. 49, PageID 453.) There
are many ways in which a plea can be “illegal,” e.g., if the judge exerts pressure or fails to
explain the rights being waived or the prosecutor makes a promise and then does not deliver on
it. The point of the procedural default and exhaustion doctrines is to require a defendant to
choose which ways he claims his sentence is illegal and the assert this claim clearly in the state
courts at the first opportunity. A habeas litigant cannot raise new issues for the first time in a
habeas petition.
Mr. Phillips seeks relief in the doctrine of Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
but, like many pro se litigants, believes it entitles him to a “less strict standard of law.” (Reply,
ECF No. 49, PageID 453.) Actually, Haines entitles pro se litigants to a less strict standard of

23

pleading. The Sixth Circuit has held that the allegations of a complaint drafted by a pro se
litigant are held to less stringent standards than formal pleadings drafted by lawyers, and will be
liberally construed. Williams v. CSX Transportation Co., Inc., 643 F.3d 502, 510 (6th Cir. 2011)
citing Federal Exp. Corp. V. Holowecki, 552 US. 389, 402 (1998); see also, Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United
States, 508 U.S. 106, 113 (1993). But the standard for procedural default applies to all litigants.
Ground Five for Relief is procedurally defaulted and should be dismissed.

Ground Six: Failure of the State Habeas Court to Review the Plea Transcript

In his Sixth Ground for Relief, Phillips claims that state habeas trial court abused its
discretion by dismissing his petition without consulting the transcript of his guilty plea which, he
believes, would have shown the plea was invalid.
Respondent argues this claim is procedurally defaulted because it was presented for the first
time on appeal from denial of the habeas petition. The Tennessee Court of Criminal Appeals
declined to address the merits of this claim on that basis. As explained above, the rule that a
court of appeals will not consider an issue not raised in the trial court is common among the
States and indeed in federal court and is therefore an adequate state procedural ground for
dismissal.
Even if this claim were not procedurally defaulted, it is not cognizable in habeas corpus.
Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). Ground Six should therefore be dismissed.

Ground Seven: Lack of Notice from the State that the Plea was to be a Best Interest Plea

24

In his Seventh Ground for Relief, Phillips asserts he did not received adequate notice from
the State that his plea was to be a “best interest” plea. This Ground for Relief is procedurally
defaulted on the same basis as Ground Six, to wit, that it was presented for the first time on
appeal from denial of the state habeas corpus petition, Ground Seven should be dismissed.

Ground Eight: Invalid Guilty Plea

In his Eighth Ground for Relief, Phillips offers another twist on his invalid plea claim, this
time because allegedly the form of the judgment is improper. Respondent asserts this claim is
procedurally defaulted because it was raised for the first time on appeal from denial of state
habeas.
Respondent’s argument is well taken for the reasons given for Grounds Six and Seven. If
the Court were to reach the merits of this claim, it would find is has no merit based on the
findings recited as to Ground One: Phillips was adequately advised of the nature of his plea and
of the out-of-range sentence to which he was agreeing Ground Eight should be dismissed.

Ground Nine: Ineffective Assistance of Counsel:
Between a Range I and a Range II Offense

Failure to Explain the Difference

In his Ninth Ground for Relief, Phillips claims he received ineffective assistance of trial
counsel when his trial attorney did not explain the difference between a Range I and a Range II
sentence. Respondent concedes this claim is preserved for merit consideration, but asserts this
Court should defer under 28 U.S.C. § 2254(d)(1) to the decision of the Tennessee Court of

25

Criminal Appeals on post-conviction (Return, ECF No. 28, PageID 373-76). Phillips claims in
his Reply that the TCCA decision is contrary to Boykin, supra, or an unreasonable application of
it.
In considering this claim on post-conviction appeal, the appellate court wrote:

Ineffective Assistance of Counsel
The right to effective assistance of counsel is safeguarded by the
Constitutions of both the United States and the State of Tennessee.
U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to receive
post-conviction relief for ineffective assistance of counsel, a
petitioner must prove two factors: (1) that counsel’s performance
was deficient; and (2) that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v.
Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in
both federal and Tennessee cases). Both factors must be proven in
order for the court to grant post-conviction relief. Id.; Henley, 960
S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Additionally, review of counsel’s performance “requires that every
effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579.
We will not second-guess a reasonable trial strategy, and we will
not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn.
Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel’s
performance is effective if the advice given or the services
rendered are within the range of competence demanded of
attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)); see also
Goad, 938 S.W.2d at 369. In order to prove that counsel was
deficient, the petitioner must demonstrate “that the counsel’s acts
or omissions were so serious as to fall below an objective standard
of reasonableness under prevailing professional norms.” Goad, 938
S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see also
Baxter, 523 S.W.2d at 936.

26

Even if counsel’s performance is deficient, the deficiency must
have resulted in prejudice to the defense. Goad, 938 S.W.2d at
370. Therefore, under the second prong of the Strickland analysis,
the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
A substantially similar two-prong standard applies when the
petitioner’s challenges counsel’s performance in the context of a
guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). First, the
petitioner must show that his counsel’s performance fell below the
objective standards of reasonableness and professional norms. See
id. Second, “in order to satisfy the ‘prejudice’ requirement, the
[petitioner] must show that there is a reasonable probability that,
but for counsel’s errors, he would have not have pleaded guilty and
would have insisted on going to trial.” Id. at 59.
In this case, the Petitioner argues that he received ineffective
assistance of counsel “[b]ased on trial counsel’s failure to explain
to [the Petitioner] that he would be pleading out-of-range, and trial
counsel’s failure to inform [the Petitioner] that the State would not
be calling the jailhouse informants to testify against him . . . .”
As noted above, the post-conviction court addressed both of the
grounds supporting the Petitioner’s claim for ineffective assistance
of counsel and found that the Petitioner understood that he was
pleading to an out-of-range sentence and that he failed to prove
that the knowledge of the absence of the jailhouse informants’
testimony would have significantly affected his decision to plead
guilty. At the post-conviction hearing, the Petitioner explained
that he understood he was accepting a 32-year sentence as part of
the plea deal but maintained that he did not understand that he was
pleading as a Range II offender. He also stated that his belief that
the jailhouse informants would testify against him “play[ed] a
role” in his decision to plea guilty. However, the Petitioner did not
claim that he would have insisted on taking his case to trial had he
been sufficiently informed about either of these issues. Further, the
Petitioner acknowledged his own blood had been found at the
crime scene. Therefore, the Petitioner failed to prove that he was
prejudiced by any alleged deficiency and is not entitled to relief.
Phillips II, 2015 Tenn Crim. App. LEXIS 271, at **16- 18.

27

Phillips merely asserts that these conclusions are an objectively unreasonable application of
Strickland and Hill v. Lockhart, without showing how. Had he gone to trial, he would have
faced a possible life sentence. Regardless of whether the jail informants ever testified against
him, his blood was on the deceased.

He points to no way in which it would have been

reasonable for him to insist on going to trial.
Because the court of appeals decision is a reasonable application of Strickland, it is entitled
to deference under 28 U.S.C. § 2254(d)(1). Ground Nine should be dismissed.

Ground Ten: Trial Court Error in Failing to Explain the Difference Between a Range I
and Range II Sentence

In his Tenth Ground for Relief, Phillips claims his plea in invalid because the trial court did
not explain the difference between a Range I and a Range II sentence. Respondent asserts this
claim is procedurally defaulted because it was never presented to the Tennessee Court of
Criminal Appeals (Return, ECF No. 28, PageID 368).
Phillips responds that this is an issue his post-conviction counsel should have raised (Reply,
ECF No. 49, PageID 466). That excuse is unavailing. This is a claim of trial court error which
could have been raised on direct appeal, but no direct appeal was ever taken. Phillips also never
raised it in his pro se state habeas petition, an omission which cannot be blamed on postconviction counsel.
Because this claim was never presented to the state courts, it is procedurally defaulted and
should be dismissed with prejudice.

Conclusion

28

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

September 27, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

29