Nali v. Phillips

Decision Date16 August 2012
Docket NumberNos. 09–1876,09–1960.,s. 09–1876
PartiesFrank NALI, Petitioner–Appellee/Cross–Appellant, v. Thomas PHILLIPS, Warden, Respondent–Appellant/Cross–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

681 F.3d 837

Frank NALI, Petitioner–Appellee/Cross–Appellant,
v.
Thomas PHILLIPS, Warden, Respondent–Appellant/Cross–Appellee.

Nos. 09–1876, 09–1960.

United States Court of Appeals,
Sixth Circuit.

Argued: April 19, 2012.
Decided and Filed: June 6, 2012.

Rehearing and Rehearing En Banc Denied Aug. 16, 2012.


[681 F.3d 838]


ARGUED: Laura Graves Moody, Office of the Attorney General, Lansing, Michigan, for Appellant/Cross–Appellee.
Ryan T. Holte, Jones Day, Atlanta, GA, for Appellee/Cross–Appellant. ON BRIEF:Laura A. Cook, Joel D. McGormley, Office of the Attorney General, Lansing, Michigan, for Appellant/Cross–Appellee. Ryan T. Holte, Jones Day, Atlanta, Georgia, Joan Ellerbusch Morgan, Sylvan Lake, Michigan, for Appellee/Cross–Appellant. Frank Nali, Grosse Pointe, Michigan, pro se.

Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.
*

OPINION

ALARCÓN, Senior Circuit Judge.

Frank Nali was convicted by a jury in a Michigan state court on one count of extortion in violation of section 750.213 of the Michigan Compiled Laws. The Michigan courts affirmed his conviction and denied his request for post-conviction relief. Nali petitioned the United States District Court for the Eastern District of Michigan for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). The district court granted unconditionally Nali's petition for a writ of habeas corpus on the ground that the evidence at trial was insufficient to support his conviction, but denied his claim that he was provided with ineffective assistance of trial counsel. The State of Michigan appeals from the judgment granting Nali's habeas corpus petition on the ground that the evidence presented at trial was sufficient to support Nali's conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Nali cross-appeals from the district court's decision to deny him habeas corpus relief on his ineffective assistance of trial counsel claim. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. For the reasons that follow, we reverse the judgment of the district court on appeal, affirm the judgment on cross-appeal, and remand the matter for further proceedings consistent with this decision.

I
A

Frank Nali and Mary O'Brien met in 1992 and started a sexual relationship.

[681 F.3d 839]

O'Brien was married at the time. Over the course of their relationship, which lasted for approximately ten years, Nali videotaped his sexual encounters with O'Brien without her consent. O'Brien testified that Nali suggested to her that they videotape their sexual encounters. O'Brien told Nali that she did not feel comfortable being videotaped because “if there was a videotape that got into the wrong hands, it would be devastating to [her] and [her] family.” Nali told O'Brien he would use the video camera simply to project their sexual acts on the television screen, without recording their conduct. She testified that Nali told her that there was no film in the camera, and on some occasions “he would actually open the side of the camera and show [her] there was no film [inside the camera].” O'Brien agreed to projecting the images onto the television screen but not to being taped.

About three years into the relationship, O'Brien found some video cassettes on Nali's dresser that had women's names on them. One of them was labeled “Mary.” She confronted Nali about the tape and he admitted it was a videotape of them engaged in sexual acts. O'Brien testified that she told Nali she did not want to be taped; he told her he wanted it for “a souvenir.” O'Brien told Nali, “no, I'm going to take it home and I am going to destroy it,” but Nali “wrestled it out of [her] hand.” When O'Brien declined to watch the video with Nali, he “opened up the videotape and pulled out some of the tape and threw it down”; O'Brien “picked it up and ... pulled out more tape and threw it down,” assuming it was destroyed.

Over the course of the affair, O'Brien attempted on more than one occasion to end her relationship with Nali. Each time, Nali threatened to reveal the affair and the videotapes to her husband. He also threatened to provide the videotapes to the media.

After O'Brien and her husband divorced, she ended her relationship with Nali on September 5, 2002. Nali refused to comply with O'Brien's subsequent requests to be left alone. Instead, he left seventeen voice mail messages on O'Brien's home and work phone numbers between September 6, 2002, and September 12, 2002.

O'Brien recorded the messages on a cassette and gave them to the police. When the police questioned Nali about the telephone messages, he denied calling O'Brien. Later that day, O'Brien's ex-husband intercepted a package addressed to their daughter, which contained a letter and a videotape of some of Nali's sexually explicit encounters with O'Brien.

Two of O'Brien's brothers received similar packages containing sexually explicit videotapes of O'Brien's encounters with Nali and similarly worded letters.

B

A jury convicted Nali on one count of extortion. The trial court sentenced Nali to serve a minimum of thirteen years and a maximum of twenty years. This sentence was subsequently reduced by a successor trial court judge to a term of fifty months to twenty years. Nali filed a direct appeal from the judgment of conviction. The State cross-appealed from the order amending the sentence.

While his direct appeal was pending in the Michigan Court of Appeals, Nali filed a pro se motion to remand the matter to the trial court so that it could fully develop the factual record to support an ineffective assistance of trial counsel claim. In the remand motion, Nali set forth twenty-eight separate contentions to support his claim that he was denied the effective assistance of counsel at trial. The Michigan Court of

[681 F.3d 840]

Appeals denied Nali's motion “for [petitioner's] failure to persuade the Court of the need to remand” the case at that time.

In his direct appeal, Nali contended that the evidence was insufficient to prove extortion. He also argued that the trial court abused its discretion in denying Nali's request for the appointment of a substitute counsel, his motion for a new trial grounded on his claim of ineffective assistance of trial counsel, and his motion “for evidentiary hearing to establish more fully a record for appellate review ... in connection with his motion for a new trial.”

On December 29, 2005, the Michigan Court of Appeals affirmed the direct appeal of the state court's judgment. It rejected Nali's argument that the trial court abused its discretion in denying his motion for a directed verdict on the extortion charge. Nali filed an application with the Michigan Supreme Court seeking review of the decision of the Michigan Court of Appeals. In his application, Nali raised twelve claims, including his contentions that the evidence was insufficient to support his conviction for extortion and that he was denied the effective assistance of trial counsel. The Supreme Court of Michigan denied Nali's application because it was “not persuaded that the questions presented [by petitioner] should be reviewed” by the court.

In his application for a writ of habeas corpus pursuant to § 2254(a), Nali raised two claims relevant to this appeal. First, he argued that the Michigan Court of Appeals unreasonably applied federal law as established in Jackson in concluding that there was sufficient evidence presented at trial to support his conviction for the crime of extortion under Michigan law. Second, Nali contended that the Michigan Court of Appeals erred in rejecting his claim that he was denied his Sixth Amendment right to the effective assistance of trial counsel.1 The district court found that the evidence at trial was insufficient to support Nali's conviction and granted his petition for an unconditional writ of habeas corpus. The district court also concluded that Nali was not denied the effective assistance of counsel at trial. On July 8, 2009, it issued an order granting Nali immediate release. This timely appeal followed.

II
A

The State contends that the district court erred in granting Nali's § 2254(a) petition. It argues that sufficient evidence was presented at trial to support the jury's finding that Nali maliciously threatened to expose O'Brien's sexual relationship with him to her family in the voice mails he left for her with the intent to compel her not to end it. This Court reviews de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006). We are bound by the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 in this case because Nali filed his petition on December 7, 2007, after AEDPA's effective date. See Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (suits filed after April 24, 1996, AEDPA's effective date, are subject to the amendments made to chapter 153 of Title 28 of the United States Code by AEDPA). “Under AEDPA, a federal court may grant a writ of habeas corpus with respect

[681 F.3d 841]

to a ‘claim that was adjudicated on the merits in State court proceedings' only if the state-court decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Pinchon v. Myers, 615 F.3d 631, 638–39 (6th Cir.2010) (quoting 28 U.S.C. § 2254(d)(1) and (2)), cert. denied,––– U.S. ––––, 131 S.Ct. 2151, 179 L.Ed.2d 938 (2011).

“A state-court decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a...

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