Gibbs v. Woods

• Decision Date: 09 September 2020
• Docket Number: Case No. 14-cv-14028
• Citation: 485 F.Supp.3d 859
• Parties: Phillip Charles GIBBS, Petitioner, v. Jeffrey WOODS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

485 F.Supp.3d 859

Phillip Charles GIBBS, Petitioner,

v.Jeffrey WOODS, Respondent.

Case No. 14-cv-14028

United States District Court, E.D. Michigan, Southern Division.

Signed September 9, 2020

Federal Community Defender, Andrew N. Wise, Federal Community Defender, Detroit, MI, for Petitioner.

Bruce H. Edwards, John S. Pallas, Laura Moody, Rebecca Ashley Berels, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER (1) DENYING AMENDED PETITION FOR A WRIT OF HABEAS CORPUS (ECF No. 13), (2) GRANTING A LIMITED CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

Petitioner Phillip Charles Gibbs is a state prisoner in the custody of the Michigan Department of Corrections. In 2011, a jury in the Genesee County Circuit Court convicted Gibbs of two counts of armed robbery, Mich. Comp. Laws § 750.529, conspiracy to commit armed robbery, Mich. Comp. Laws §§ 750.157a, 750.529, and unarmed robbery, Mich. Comp. Laws § 750.530. The state trial court then sentenced Gibbs to concurrent terms of 17 ½ to 30 years imprisonment on the armed robbery and conspiracy convictions and 8 years 4 months to 15 years imprisonment on the unarmed robbery conviction.

In this action, Gibbs seeks a writ of habeas corpus from this Court pursuant to 28 U.S.C. § 2254. (See Am. Pet., ECF No. 13.) Gibbs’ primary claim is that the state trial court violated his Sixth Amendment right to a public trial when it excluded the public from voir dire. He also asserts claims related to the use of his pre-arrest silence and the validity of his sentence.

Respondent argues that Gibbs’ public trial claim is procedurally defaulted because Gibbs did not object during voir dire to the closure of the courtroom. But enforcing a default against Gibbs based upon his lack of a contemporaneous objection would be troubling because the state trial court told Gibbs and his counsel that the courtroom was (and would remain) open during voir dire , and court security officers then closed the courtroom outside of the presence of Gibbs and his lawyer. Under these circumstances, Gibbs could not reasonably have been expected to object to the closure. As explained below, there are substantial reasons to conclude that (1) Gibbs did not procedurally default his public trial claim when he failed to object contemporaneously to the unknown closure and/or (2) any procedural default should be excused because the state trial court led Gibbs to conclude that the courtroom would be open and that no objection would be necessary.

But the Sixth Circuit's divided decision in Bickham v. Winn , 888 F.3d 248 (6th Cir. 2018) compels the Court to deem Gibbs’ public trial claim defaulted and to enforce the default. In Bickham , the Sixth Circuit held that a habeas petitioner who was unaware of a courtroom closure procedurally defaulted his public trial claim when he failed to object during jury selection to the unknown closure, and the Sixth Circuit enforced the default.

While Bickham binds this Court, it is not clear that the Sixth Circuit in that case considered all of the arguments that weigh heavily against finding and enforcing a procedural default under the circumstances presented here. That court may well deem these additional arguments worthy of further consideration (in an en banc setting if necessary). In the alternative, the Sixth Circuit may conclude that Bickham does not control here for some reason – a conclusion this Court does not feel that it may reach. For these reasons (and because enforcing a procedural default here seems grossly unfair), the Court will grant a certificate of appealability limited to Gibbs’ public trial claim. (Gibbs’ two remaining claims lack merit and are not worthy of further review.)

Accordingly, for the reasons stated below, the Court DENIES Gibbs’ petition but GRANTS him limited certificate of appealability on his public trial claim.

I

Gibbs’ convictions arise from his and co-defendant Tyrell Henderson's armed robbery of a store in Flint, Michigan on October 26, 2010. The Michigan Court of Appeals described the relevant facts as follows:

This case arises from an armed robbery that occurred at a store called Wholesale 4 U in Flint, Michigan, on October 26, 2010. Nancy Anagnostopoulos and her husband, Costas Anagnostopoulos, owned the store and were present at the time of the robbery. Also present was employee Jeremy Kassing. Defendants had been to the store together numerous times that day. Originally, they had hoped to pawn some jewelry. After finding out that the jewelry had no value, Henderson purchased a video game. He later decided to return it. Defendants entered the store and told Costas that the game did not work. As Costas attempted to help determine what was wrong with the game, Henderson struck him in the head with a gun. Gibbs, who was not personally armed during the incident, approached Nancy and removed her necklaces and ring. He took her identification and purse. Gibbs also took an iPod from the store, as well as a number of laptop computers. In the meantime, Henderson took Costas's jewelry, wallet, and money. He ordered Costas to open the store's register and then took Costas to a back room where a safe was kept. Part of Costas's ear was cut off as a result of the blow he received, and he received stitches for the injury. Kassing's wallet was also taken. A subsequent search of the home Gibbs shared with his mother uncovered a sandwich bag containing jewelry, a sandwich bag containing papers and the identifications of the three victims, and several watches identified as those taken from the store.

In separate police interviews, both defendants admitted their involvement. However, Gibbs told the officer that his involvement was involuntary. Gibbs believed that they were going to the store to return the video game and had no idea that Henderson was planning a robbery. Gibbs stated that Henderson ordered him to take the victims’ belongings and other store items. Gibbs testified at trial that he complied only because he did not want anything to happen to him.

The juries convicted defendants and they were sentenced as outlined previously.

People v. Gibbs , 299 Mich.App. 473, 830 N.W.2d 821, 823-24 (2013).

Following his convictions and sentencing, Gibbs filed an appeal of right in the Michigan Court of Appeals. He raised claims arising out of the trial court's closure of the courtroom during voir dire , the prosecutor's use of his pre-arrest silence, and the scoring of the state sentencing guidelines. He also filed a motion to remand for a hearing on his public trial and sentencing issues. The Michigan Court of Appeals granted the motion to remand and the case returned to the state trial court. (The Court discusses the proceedings on remand in much more detail below.)

The state trial court denied Gibbs relief on remand, and Gibbs thereafter returned to the Michigan Court of Appeals. That court affirmed his convictions and sentences. Gibbs then filed an application for leave to appeal with the Michigan Supreme Court. That court denied the application. See People v. Gibbs , 495 Mich. 889, 838 N.W.2d 875 (2013).

In 2014, Gibbs filed his initial federal habeas petition in this Court. (See Pet., ECF No. 1.) In that petition, Gibbs raised the same claims that he presented on direct appeal in the state courts. After Respondent filed an answer to the petition, Gibbs moved to amend the petition or to stay the proceedings so that he could exhaust in the state courts a claim that the state trial court interfered with his trial counsel's ability to provide effective assistance. The Court stayed the proceedings and allowed Gibbs to exhaust that claim in December 2015. (See Order, ECF No. 11.)

Gibbs then filed a motion for relief from judgment with the state trial court. The trial court denied the motion. See People v. Gibbs , No. 11-02140-FC (Genesee Co. Cir. Ct. March 14, 2016). Gibbs then filed an application for leave to appeal with the Michigan Court of Appeals, and that court denied the application. See People v. Gibbs , No. 334968 (Mich. Ct. App. Dec. 22, 2016). Gibbs failed to timely seek leave to appeal with the Michigan Supreme Court.

Gibbs thereafter moved to reopen this case and proceed on an amended petition. (See Mot., ECF No. 12.) The Court granted that motion and reopened the case. (See Order, ECF No. 14.) In the amended habeas petition, Gibbs raises the following claims:

I. His Sixth Amendment right to a public trial was violated by the closure of the courtroom [which] excluded members of his family and the public from the jury selection.

II. He was prejudiced by the violation of his Fifth Amendment right to remain silent, and the prosecutor used his pre-arrest silence to impeach exculpatory testimony at trial. The prosecutor then referred to the silence during his closing argument.

III. His right to due process was violated by the refusal to correct guidelines scoring mistakes [PRV 5 and 6 and OV 13 where] correcting the mistakes would substantially reduce the guideline range.

IV. The trial court prevented him from having the effective assistance of trial counsel by the way of not disclosing the decision to have the courtroom closed to the public.

Respondent filed an answer to the amended petition. (See Ans., ECF No. 15.) Respondent argued that Gibbs’ public trial and pre-arrest silence claims are procedurally defaulted, that the sentencing claim is not cognizable, and that all of the claims lack merit. (See id. ) Gibbs filed a reply to that answer. (See Reply, ECF No. 17.) The Court thereafter appointed counsel for Gibbs and directed the parties to file supplemental pleadings on the public trial claim. Both parties did so. (See Supp. Brs., ECF No. 25, 26.)

II

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