RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Phillips v. Million No. 03-5561 ELECTRONIC CITATION: 2004 FED App. 0202P (6th Cir.) File Name: 04a0202p.06 Appellant. Gregory C. Fuchs, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: John A. Palombi, KENTUCKY UNITED STATES COURT OF APPEALS DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. Gregory C. Fuchs, OFFICE OF FOR THE SIXTH CIRCUIT THE ATTORNEY GENERAL, Frankfort, Kentucky, for _________________ Appellee.
JONATHAN LEIGH PHILLIPS, X _________________ Petitioner-Appellant, - - OPINION - No. 03-5561 _________________ v. - > BOYCE F. MARTIN, JR., Circuit Judge. Jonathan Leigh , Phillips appeals the district court's denial of his petition for a GEORGE MILLION , - Respondent-Appellee. - writ of habeas corpus. For the reasons below, we AFFIRM. N I. Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. On November 28, 1996, Mr. Phillips, along with Terry No. 01-00479—Karl S. Forester, Chief District Judge. Burchett and Natasha Yates, a minor, set out in a car to purchase crack cocaine. Mr. Phillips took a gun with him. Argued: June 10, 2004 He located a street dealer and purchased a "rock" of crack cocaine. Returning to the vehicle, Mr. Phillips got into an Decided and Filed: June 30, 2004 argument with John Demarco Johnson, who had observed, but not participated in, the crack-cocaine transaction. As Mr. Before: MARTIN and SUTTON, Circuit Judges; Phillips was getting back into the car, Mr. Johnson threw a WILLIAMS, Senior District Judge.* bottle toward Mr. Phillips. The argument evolved into a gunfight with Mr. Phillips and Mr. Johnson firing numerous _________________ shots at each other. As Mr. Phillips drove away from the shootout, he noticed that Ms. Yates had been fatally wounded. COUNSEL The parties agree that Mr. Johnson fired the bullet that killed Ms. Yates. ARGUED: John A. Palombi, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Mr. Phillips and Mr. Johnson were jointly tried before the same jury in a Kentucky state court. Mr. Phillips was found guilty of wanton murder and tampering with physical evidence. He received a twenty-six year sentence. The * The Honorable Glen M. Williams, Senior United States District Kentucky Supreme Court affirmed the decision and denied Judge for the Western District of Virginia, sitting by designation.
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Mr. Phillips's request for a rehearing. Phillips v. violated the federal constitutional requirement that a Commonwealth, 17 S.W.3d 870 (Ky. 2000). After the United defendant have personal guilt in order to be convicted of an States Supreme Court denied Mr. Phillips's petition for a writ offense. Second, he argues that the Kentucky Supreme Court of certiorari, he sought habeas corpus relief under 28 U.S.C. and the district court denied him due process by affirming the § 2254 in the United States District Court for the Eastern Kentucky trial court's refusal to give a jury instruction on self- District of Kentucky. The district court denied his petition, defense under a state statute he believes should not apply. and he appealed. Third, he argues that the Kentucky courts and the district court denied him a fair trial by affirming his joint prosecution II. with Mr. Johnson. We disagree. In habeas proceedings, our Court reviews a district court's A. legal conclusions de novo and its factual findings for clear error. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 418 Mr. Phillips was not punished for the acts of another in (6th Cir. 2003). The controlling law is set forth in 28 U.S.C. violation of any federal constitutional right. The district court § 2254(d). It states that we may grant a petition for a writ of correctly noted that "federal habeas corpus relief does not lie habeas corpus from a person held in custody pursuant to the for errors of state law," and "that it is not the province of the judgment of a state court only if the judgment: "(1) resulted federal habeas court to reexamine state-court determinations in a decision that was contrary to, or involved an on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67- unreasonable application of, clearly established Federal law, 68 (1991); see also Cooey v. Coyle, 289 F.3d 882, 902 (6th as determined by the Supreme Court of the United States; or Cir. 2002). Whether one can be found guilty for wanton (2) resulted in a decision that was based on an unreasonable murder under Kentucky law when one recklessly exposes determination of the facts in light of the evidence presented another to a shootout is a question for the Kentucky courts. in the State court proceeding." Ibid. In Williams v. Taylor, The Kentucky Supreme Court, in this case, held that such 529 U.S. 362 (2000), the Supreme Court clarified when a conduct is punishable. Phillips, 17 S.W.3d at 875, and we see state-court decision was "contrary to" clearly established no reason to challenge the highest Kentucky court on a Supreme Court case law. The Court held that "[a] state-court Kentucky-law question. decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the Mr. Phillips, however, believes that his argument raises a governing law set forth in our cases." Id. at 405. Further, it federal constitutional question, and to get it under the purview held that "[a] state-court decision will also be contrary to this of 28 U.S.C. § 2254(d), cites two cases: United States v. Court's clearly established precedent if the state court White, 322 U.S. 694 (1944), and Scales v. United States, 367 confronts a set of facts that are materially indistinguishable U.S. 203, 224-25 (1961). As did the district court, we believe from a decision of this Court and nevertheless arrives at a the cases cited are both factually distinguishable and set forth result different from our precedent." Id. at 406. no precedent that controls, or for that matter speaks to, the issue Mr. Phillips raises. III. White involved a union's duty to respond to a subpoena. Mr. Phillips makes three arguments on appeal. First, he Early on in the opinion, the Court declared: "[t]he only issue argues that the Kentucky state courts and the district court in this case relates to the nature and scope of the No. 03-5561 Phillips v. Million 5 6 Phillips v. Million No. 03-5561
constitutional privilege against self-incrimination . . . . Our process." Hutchinson v. Bell, 303 F.3d 720, 731 (6th Cir. attention is directed solely to the right of an officer of a union 2002) (internal citations and quotations omitted). The to claim the privilege against self-incrimination under the Kentucky Supreme Court affirmed the non-issuance of the circumstances here presented." White, 322 U.S. at 697-98. instruction under section 503.120(2) of the Kentucky Revised We do not see how self-incrimination case law supports Mr. Statutes. Phillips, 17 S.W.3d at 875. Finding the trial court's Phillips's contention as to personal guilt.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Phillips v. Million No. 03-5561 ELECTRONIC CITATION: 2004 FED App. 0202P (6th Cir.) File Name: 04a0202p.06 Appellant. Gregory C. Fuchs, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: John A. Palombi, KENTUCKY UNITED STATES COURT OF APPEALS DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. Gregory C. Fuchs, OFFICE OF FOR THE SIXTH CIRCUIT THE ATTORNEY GENERAL, Frankfort, Kentucky, for _________________ Appellee.
JONATHAN LEIGH PHILLIPS, X _________________ Petitioner-Appellant, - - OPINION - No. 03-5561 _________________ v. - > BOYCE F. MARTIN, JR., Circuit Judge. Jonathan Leigh , Phillips appeals the district court's denial of his petition for a GEORGE MILLION , - Respondent-Appellee. - writ of habeas corpus. For the reasons below, we AFFIRM. N I. Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. On November 28, 1996, Mr. Phillips, along with Terry No. 01-00479—Karl S. Forester, Chief District Judge. Burchett and Natasha Yates, a minor, set out in a car to purchase crack cocaine. Mr. Phillips took a gun with him. Argued: June 10, 2004 He located a street dealer and purchased a "rock" of crack cocaine. Returning to the vehicle, Mr. Phillips got into an Decided and Filed: June 30, 2004 argument with John Demarco Johnson, who had observed, but not participated in, the crack-cocaine transaction. As Mr. Before: MARTIN and SUTTON, Circuit Judges; Phillips was getting back into the car, Mr. Johnson threw a WILLIAMS, Senior District Judge.* bottle toward Mr. Phillips. The argument evolved into a gunfight with Mr. Phillips and Mr. Johnson firing numerous _________________ shots at each other. As Mr. Phillips drove away from the shootout, he noticed that Ms. Yates had been fatally wounded. COUNSEL The parties agree that Mr. Johnson fired the bullet that killed Ms. Yates. ARGUED: John A. Palombi, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Mr. Phillips and Mr. Johnson were jointly tried before the same jury in a Kentucky state court. Mr. Phillips was found guilty of wanton murder and tampering with physical evidence. He received a twenty-six year sentence. The * The Honorable Glen M. Williams, Senior United States District Kentucky Supreme Court affirmed the decision and denied Judge for the Western District of Virginia, sitting by designation.
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Mr. Phillips's request for a rehearing. Phillips v. violated the federal constitutional requirement that a Commonwealth, 17 S.W.3d 870 (Ky. 2000). After the United defendant have personal guilt in order to be convicted of an States Supreme Court denied Mr. Phillips's petition for a writ offense. Second, he argues that the Kentucky Supreme Court of certiorari, he sought habeas corpus relief under 28 U.S.C. and the district court denied him due process by affirming the § 2254 in the United States District Court for the Eastern Kentucky trial court's refusal to give a jury instruction on self- District of Kentucky. The district court denied his petition, defense under a state statute he believes should not apply. and he appealed. Third, he argues that the Kentucky courts and the district court denied him a fair trial by affirming his joint prosecution II. with Mr. Johnson. We disagree. In habeas proceedings, our Court reviews a district court's A. legal conclusions de novo and its factual findings for clear error. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 418 Mr. Phillips was not punished for the acts of another in (6th Cir. 2003). The controlling law is set forth in 28 U.S.C. violation of any federal constitutional right. The district court § 2254(d). It states that we may grant a petition for a writ of correctly noted that "federal habeas corpus relief does not lie habeas corpus from a person held in custody pursuant to the for errors of state law," and "that it is not the province of the judgment of a state court only if the judgment: "(1) resulted federal habeas court to reexamine state-court determinations in a decision that was contrary to, or involved an on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67- unreasonable application of, clearly established Federal law, 68 (1991); see also Cooey v. Coyle, 289 F.3d 882, 902 (6th as determined by the Supreme Court of the United States; or Cir. 2002). Whether one can be found guilty for wanton (2) resulted in a decision that was based on an unreasonable murder under Kentucky law when one recklessly exposes determination of the facts in light of the evidence presented another to a shootout is a question for the Kentucky courts. in the State court proceeding." Ibid. In Williams v. Taylor, The Kentucky Supreme Court, in this case, held that such 529 U.S. 362 (2000), the Supreme Court clarified when a conduct is punishable. Phillips, 17 S.W.3d at 875, and we see state-court decision was "contrary to" clearly established no reason to challenge the highest Kentucky court on a Supreme Court case law. The Court held that "[a] state-court Kentucky-law question. decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the Mr. Phillips, however, believes that his argument raises a governing law set forth in our cases." Id. at 405. Further, it federal constitutional question, and to get it under the purview held that "[a] state-court decision will also be contrary to this of 28 U.S.C. § 2254(d), cites two cases: United States v. Court's clearly established precedent if the state court White, 322 U.S. 694 (1944), and Scales v. United States, 367 confronts a set of facts that are materially indistinguishable U.S. 203, 224-25 (1961). As did the district court, we believe from a decision of this Court and nevertheless arrives at a the cases cited are both factually distinguishable and set forth result different from our precedent." Id. at 406. no precedent that controls, or for that matter speaks to, the issue Mr. Phillips raises. III. White involved a union's duty to respond to a subpoena. Mr. Phillips makes three arguments on appeal. First, he Early on in the opinion, the Court declared: "[t]he only issue argues that the Kentucky state courts and the district court in this case relates to the nature and scope of the No. 03-5561 Phillips v. Million 5 6 Phillips v. Million No. 03-5561
constitutional privilege against self-incrimination . . . . Our process." Hutchinson v. Bell, 303 F.3d 720, 731 (6th Cir. attention is directed solely to the right of an officer of a union 2002) (internal citations and quotations omitted). The to claim the privilege against self-incrimination under the Kentucky Supreme Court affirmed the non-issuance of the circumstances here presented." White, 322 U.S. at 697-98. instruction under section 503.120(2) of the Kentucky Revised We do not see how self-incrimination case law supports Mr. Statutes. Phillips, 17 S.W.3d at 875. Finding the trial court's Phillips's contention as to personal guilt. denial of the instruction expressly authorized by Kentucky law, and finding no United States Supreme Court precedent Scales held that active membership in an organization to the contrary, we do not think that Mr. Phillips's argument plotting to overthrow the government could constitute raises a question of fundamental fairness. criminal behavior. Scales, 367 U.S. at 251. The Court in Scales did note that "[i]n our jurisprudence guilt is personal," C. id. at 224, but that principle, stated in dicta, will not invalidate Mr. Phillips's conviction. Mr. Phillips engaged in the Lastly, we agree with the district court that the joint behavior for which he was punished. The actions for which prosecution of Mr. Phillips and Mr. Johnson before the same he was convicted were personal to him. Phillips, 17 S.W.3d jury did not deny Mr. Phillips a fair trial. We first look to at 875. He engaged in the shootout; he recklessly and Kentucky law to determine whether a motion to sever should wantonly exposed Ms. Yates to danger. have been granted. See Hutchinson v. Bell, 303 F.3d 720, 731 (6th Cir. 2002). All the Kentucky courts in this case held that B. the simultaneous trying of Mr. Phillips and Mr. Johnson was not prejudicial and was proper. As we noted above, state trial We also agree with the district court as to Mr. Phillips's errors do not warrant habeas relief unless the errors are so second argument. Mr. Phillips offered no United States egregious that they deny the defendant fundamental fairness. Supreme Court authority suggesting that the Kentucky courts Ibid. We do not believe that to be the case here. unreasonably applied clearly established federal law in denying him a jury instruction on self-defense. Our review of Mr. Phillips points us to the case of Zafiro v. United States, the Supreme Court case law finds only one Supreme Court 506 U.S. 534 (1993), to support his claim of error. Zafiro opinion discussing the denial of a self-defense instruction and involved the interpretation of Federal Rules of Criminal due process, and that was mentioned as a hypothetical in a Procedure 8, 14, and 18, not the United States Constitution. dissent. Gilmore v. Taylor, 508 U.S. 333, 359 (1993) Zafiro thus has no precedential weight in reviewing state (Blackmun, J., dissenting). Because there is no controlling court proceedings on due process grounds, but even if that Supreme Court authority which contradicts the state court were not true, the case lends little support to Mr. Phillips. ruling, and because this claim does not involve an unreasonable determination of fact, Mr. Phillips's argument It is true, as Mr. Phillips points out, that the Zafiro Court gives us little basis on which we can act. 28 U.S.C. stated that "if there is a serious risk that a joint trial would § 2254(d). compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt We have previously held that "[s]tate-law trial errors will or innocence" then severance should be granted. Id. at 539. not warrant habeas relief unless the error rises to the level of But it is also true that the Court noted that "[t]here is a depriving the defendant of fundamental fairness in the trial preference in the federal system for joint trials of defendants No. 03-5561 Phillips v. Million 7
who are indicted together[,]" id. at 537, that "[m]utually antagonistic defenses are not prejudicial per se[,]" id. at 538, and that "[j]oint trials 'play a vital role in the criminal justice system,'" id. at 537. We do not believe the prejudice Mr. Phillips suffered from being tried with Mr. Johnson, if there was any, was sufficiently serious to jeopardize the jury's ability to determine his guilt or innocence. The Kentucky Supreme Court upheld Mr. Phillips's conviction because the Court found his engaging in a firefight with Mr. Johnson evidenced an "extreme indifference to Yates's life" thereby causing her death. Phillips, 17 S.W.3d at 875. Mr. Phillips does not contest that he engaged in the shootout. Given the great tolerance of joint trials, and Mr. Phillips's admission of this pivotal fact, we find that the joint trial of Mr. Phillips and Mr. Johnson did not violate any federal law. Accordingly, we AFFIRM the judgment of the district court.