Nali v. Phillips

• Decision Date: 29 June 2009
• Docket Number: Case No. 07-CV-15487.
• Citation: 630 F.Supp.2d 807
• Parties: Frank NALI, Petitioner, v. Thomas PHILLIPS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

630 F.Supp.2d 807

Frank NALI, Petitioner, v. Thomas PHILLIPS, Respondent.

Case No. 07-CV-15487.

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

June 29, 2009.

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Joan E. Morgan, Sylvan Lake, MI, for Petitioner.

Laura A. Cook, Laura Moody, Michigan Department of Attorney General, Lansing, MI, Scott R. Baker, Gabe, Quinn & Seymour, Royal Oak, MI, for Respondent.

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING PETITIONER'S MOTIONS, DOCKETED NUMBERS 40 THROUGH 45 AND 48 AS MOOT

ARTHUR J. TARNOW, District Judge.

Petitioner Frank Nali, a Michigan state inmate currently incarcerated at the Mound Correctional Facility in Detroit, Michigan,¹ filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for extortion for an act on or about September 2, 2002, MICH. COMP. LAWS § 750.213.

Petitioner alleges (1) there was insufficient evidence presented to support his conviction for extortion, (2) his trial counsel was ineffective for failing to meet with him, for failing to interview witnesses, and for failing to review discovery material in preparation for trial, (3) prosecutorial misconduct, (4) various trial court errors, (5) the statute under which he was charged is unconstitutional, (6) judicial misconduct, and (7) that his due process rights were violated when the Michigan Parole Board failed to follow statutory guidelines and procedures in determining his parolability.

The Court concludes that, due to the lack of sufficient evidence to support his conviction for extortion, Petitioner's petition for writ of habeas corpus is unconditionally granted.

I. BACKGROUND

A. Facts

Petitioner's troubles in this case arose as a result of a ten-year-extramarital relationship. At trial, the Complainant, his former lover, testified as follows:

She and Petitioner met in 1991, at Balley's Gym located in St. Claire Shores, Michigan. At the time, she was married and had two children. Initially, her relationship with Petitioner began as a friendship and, within six to eight months, it evolved into an affair. She testified that she devoted a substantial amount of her free time to developing her relationship with Petitioner. During the ten-year period, she and Petitioner met at his house, about one to two times a week. Their trysts eventually escalated to at least five to six times a week.

After about two or three years of the relationship, on one occasion, when she went over to Petitioner's house, she saw that he had a video camera set up. She testified that she became upset and told Petitioner that she was not comfortable being videotaped, because if the video fell into the "wrong hands, it would be devastating to me and my family." (Trial Tr. vol. II, 25, Feb. 25, 2003.) She nevertheless agreed to the use of the camera to display their sexual encounters on the television, but said that she did not agree to record the encounters.

About three years later, again while at Petitioner's home, she discovered a videotape with her name on it. She confronted Petitioner about her finding and asked him if it were a videotape of them having sex. Petitioner confirmed that it was. She then told Petitioner that she wanted the tape destroyed. However, Petitioner told her he wanted it as a souvenir and said that they should watch the tape together. She refused. She then told Petitioner she was going to take the tape home and destroy it herself. Petitioner attempted to take the tape from her. He opened the cassette and pulled out the tape, trying to destroy it. She picked up the cassette and attempted to pull out more of the tape. She said she believed that the video cassette had been destroyed.

Subsequently, she found a second tape, while she and Petitioner were watching a video of Petitioner and his ex-girlfriend having sex. Also on that tape was a recording of her and Petitioner having sex. There is no evidence in the record suggesting that she attempted to destroy that tape or that she tried to persuade Petitioner to destroy it.

Complainant testified that there were several times during their relationship, especially when they argued, that she attempted to end it, but Petitioner would pressure her to stay by telling her that he was going to tell her family about their affair.

Then, in September 1999, while Petitioner was away, Complainant agreed to watch his home. During that time, she did not destroy the tapes. Rather, she wrote to Petitioner, exchanging about forty hand-written letters with him.

When Petitioner returned in 2000, they had an argument. She told him she was going to leave him. She testified that Petitioner said, "I know just what to do. I just make one phone call and tell Jim." (Trial Tr. vol. II, 29, Feb. 25, 2003.) However, the relationship continued.

On cross-examination, Complainant admitted that incident occurred about two years before Petitioner was charged with the present offense. The following colloquy took place between her and defense counsel:

Q. My initial question was in April or May of 2000 that was the only identifiable time when [Petitioner] threatened to show that tape to your family or your husband or your mother; is that correct?

A. Right.

Q. And that didn't occur in September of 2002, did it? It was several years before?

A. Two years before, right.

(Trial Tr. vol. II, 78-79, Feb. 25, 2003.)

Complainant filed for divorce from her husband in 2001, which was finalized in May 2002. Her relationship with Petitioner continued for about four more months after the divorce.

Then, on September 3, 2002, she attended a Jazz Festival in Detroit with some friends. The next day, when she was at the gym, Petitioner questioned her about the festival. She said she walked away because she was annoyed. Later that evening, he showed up at her house. They had an argument. She asked him to leave the house. He refused. Eventually Petitioner left, but returned about six times that night, ringing her doorbell each time. She refused to answer. Rather, she called the police. They agreed to patrol the area that night.

Complainant testified that the following day she told her daughter about her ten year affair with Petitioner. And, the day after that, she visited her son at college and also told him about the affair. Subsequently, on or around September 5, 2002, she said that she told Petitioner that their relationship was over. She said he was angry, yelling obscenities at her and telling her that she was crazy.

When Complainant went to work the following day, there were voicemails from Petitioner. She testified that between September 6, 2002, and September 12, 2002, Petitioner left seventeen voicemails. She never responded, but rather, she transferred them to a microcassette, which she gave to the police.

On September 13, 2002, Complainant received a phone call from her former husband, telling her that a package, containing a videotape of her and Petitioner having sex, had been sent to their daughter, along with a letter. She also received phone calls from her brothers, telling her that similar packages were sent to them.

The tape-recorded-voice-mail messages, the letters, and the videotapes were admitted into evidence.

Complainant testified that the voice-mail messages had a theme of punishment and consequences for bad behavior—"for all my lying and treating him badly over the years. I deserved to be punished." (Trial Tr. vol. II, 40, Feb. 25, 2003). In one, Petitioner compared their "relationship to that of a parent and a child where a parent is—if he truly loves a child must punish the child." (Trial Tr. vol. II, 41, Feb. 25, 2003).

The contents of the letters that were sent to her brothers and to her daughter were similar in nature. The following letter, sent to one of her brothers, was read into the record by Complainant:

Q. Okay. Could you please read to us what that letter says?

A. Yes. The enclosed video contains very sensitive material and should not be viewed in the presence of anyone under the age of 21. It is time the truth be told. Mary has lied to everyone. The video shows exactly what she's been doing for many years. Was it coincidental that [she] got divorced shortly after her son turned 21?

It was all planned. She did not want any responsibilities toward her children anymore. She immediately found her own apartment so she could go on making these films without being constrained by living with her children.

The material in the video shows X— excerpts from several films Mary has made. These videos are found in some places that sell these material[s]. The entire family should know. And it is hoped that you would inform them so these tapes would not have to be sent to all members of the family including her parents.

(Trial Tr. vol. II, 58-59, Feb. 25, 2003).

At the completion of the prosecution's case-in-chief, defense counsel moved for a directed verdict on all charges. The trial court granted the motion as to the three obscenity charges, but denied the motion as to the extortion and stalking charges.

Against the advice of his attorney, Petitioner testified on his own behalf. No other witnesses were presented.

Petitioner testified that he met Complainant in 1990. He said they began a sexual relationship around 1992, which lasted until 2002. During the last three to four years of their relationship, they saw each other about five to six times a week. He said he never made any threats to expose his relationship with her.

Petitioner acknowledged that he taped their sexual encounters, but said Complainant consented. He said she never asked him to destroy the tapes and that they frequently watched the tapes together. It was his testimony that the telephone messages left on her voicemail were simply his way of explaining his point of view regarding their break up. He did not consider the phone messages to be threatening.

B. Procedural History

On ...