Phillips v. Prelesnik

• Decision Date: 26 January 2017
• Docket Number: Case No. 1:13-cv-609
• Court: U.S. District Court — Western District of Michigan
• Parties: CHARLES PHILLIPS, Petitioner, v. JOHN PRELESNIK, Respondent.

CHARLES PHILLIPS, Petitioner, v. JOHN PRELESNIK, Respondent.

Case No. 1:13-cv-609

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 26, 2017

Honorable Robert Holmes Bell

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Over a period of several days during November of 2009, a Genesee County Circuit Court jury heard testimony on two consolidated cases involving criminal sexual conduct (CSC) charges against Petitioner Charles Phillips. In Case No. 09-025251-FC, Petitioner was charged with six counts of first-degree CSC and two counts of second degree CSC, all relating to one victim under the age of 13 years: DL. In Case No. 09-025421-FC, Petitioner was charged with two counts of first-degree CSC, three counts of second-degree CSC, one count of accosting a child for immoral purposes, and one count of producing child sexually abusive material, all relating to three victims, brothers, under the age of 13 years: AB, TB, and ZB.

On December 1, 2009, after deliberating for less than three hours, the jury returned its verdict. Petitioner was convicted of six counts of first-degree CSC, MICH. COMP. LAWS § 750.520b(1)(a); five counts of second-degree CSC, MICH. COMP. LAWS § 750.520c(1)(a); one count of accosting a child for immoral purposes, MICH. COMP. LAWS § 750.145a; and one count of producing child sexually abusive material, MICH. COMP. LAWS § 750.145c(2).¹ On January 13, 2010, Petitioner was sentenced to terms of imprisonment as follows: (A) in Case No. 09-025251-FC, sentences of life imprisonment on first-degree CSC counts I and III; sentences of 40 years to 66 years, 8 months on first-degree CSC counts IV and VI; and sentences of 6 years, 3 months to 15 years on second-degree CSC counts VII and VIII; all of these sentences to be served consecutive to each other;² and (B) in Case No. 09-025421-FC, a sentence of life imprisonment on first-degree CSC count I; a sentence of 50 to 75 years on first-degree CSC count III; sentences of 6 years, 3 months to 15 years on second-degree CSC counts II, IV, and VII; a sentence of 2 to 4 years on accosting a child for immoral purposes Count VI; and a sentence of 6 years, 3 months to 20 years on producing child sexually abusive material Count V; all of these sentences to be served concurrently with each other and the sentences in Case No. 09-025251-FC. The trial court expressed its sentencing purpose: "It is my intention that you are sentenced to prison for so long that you'll die there . . . ." (Sentence Tr. at 23, ECF No. 26.)³

In his pro se amended petition Petitioner raises seven issues:

I. The third interagation [sic] statement should have been Suppresed [sic] (confession) because the miranda warnings received two days prior were stale by the third interrogation was performed and due to his condition.

II. Trial court allowed a non victim to allocate [sic] at sentencing where he encouraged the court to sentence on allegations [that were not part of the case] and trial counsel failed to object.

III. The Petitioner was not afforded with effective assisstance [sic] of counsel by his trial attorney for numerous issues.

IV. Petitioner[']s trial counsel failed to request or present any expert witnesses, such testimony if provided would have changed the verdict.

V. Trial counsel faile[d] to file Petitioner[']s requested interlocatory [sic] appeal, denial of counsel at a critical stage & conflict of interest.

VI. Trial attorney failed to investigate and or call witnesses provided by Petitioner for his defense, given prior to trial.

VII. Petitioner claims trial court cannot set aside a valid or partial valid sentence while the Petitioner left the court building awaiting execution.

( Am. Pet., ECF No. 5, Page ID.299-310.) Petitioner raised all of these issues in the briefs he filed in the Michigan Court of Appeals. (Def.-Appellant's Br.; Def.-Appellant's Supplemental Br., ECF No. 28.) In an unpublished opinion issued September 20, 2011, the court of appeals affirmed the convictions. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the issues he had raised in the court of appeals. (Appl. for Leave to Appeal, ECF No. 29.) The supreme court denied leave to appeal on March 5, 2012. People v. Phillips, 808 N.W.2d 782 (Mich. 2012).

Petitioner filed his initial petition on June 5, 2013. He filed his amended petition on July 15, 2013. On January 24, 2014, Respondent filed an answer to the petition, (ECF No. 12), which addressed all of the issues in the amended petition. Respondent's answer argues that the habeas petition should be denied because the grounds upon which it is based are without merit. OnFebruary 11, 2014, Respondent filed the state-court record, pursuant to Rule 5, RULES GOVERNING § 2254 CASES. (ECF Nos. 13-29.)

Upon review and applying the AEDPA standards, the Court finds that all habeas grounds are meritless. Accordingly, the Court will deny the petition.

Procedural and Factual Background

Petitioner's habeas challenges relate to matters before trial (the Walker hearing, Issue I), matters after trial (sentencing, Issues II and VII), and actions Petitioner's counsel failed to take throughout the proceedings (Issues III-VI). An in-depth recounting of the trial testimony of each witness is not necessary to resolve Petitioner's claims.

At Petitioner's trial, the prosecutor introduced testimony from fifteen witnesses. Five of the witnesses were children, the four victims in the charged crimes (DL, AB, TB, and ZB) plus another victim (CA). The children provided similar testimony: Petitioner had, on multiple occasions, either anally penetrated, performed oral sex, and/or masturbated them. The children were not entirely clear with respect to the dates of these events, with one notable exception. Each child recalled his participation with Petitioner in a sleepover on the occasion of Petitioner's son's birthday party that resulted in a pedophilic orgy in a tent in Petitioner's mother's backyard.⁴ The children, except for AB, also testified that Petitioner took nude pictures of them.⁵

The parents of AB, TB, and ZB testified, as did the mother of DL. The individual to whom TB initially reported the crimes testified. The forensic interviewers of the victims testified.The police officer who initially responded to the report testified. Detective Todd Gilbert, the lead investigator, testified as well.

The testimony of Detective Gilbert warrants closer scrutiny as it bears directly on Petitioner's motion to suppress his confession. Detective Gilbert conducted several interviews with Petitioner. Detective Gilbert conducted the first interview the night of February 2, 2009, after Petitioner was arrested. (Walker Hr'g Tr. at 5-20, ECF No. 21; Trial Tr. III at 116-151, ECF No. 22.) Petitioner participated in the second interview on February 3, 2009, at approximately 9:30 a.m. (Walker Hr'g Tr. at 21-27, ECF No. 21; Trial Tr. III at 152-165, ECF No. 22.) Detective Gilbert interviewed Petitioner for the third and final time during the afternoon of February 4. (Walker Hr'g Tr. at 27-39, ECF No. 21; Trial Tr. III at 166-167, ECF No. 22; Trial Tr. IV at 4-55, ECF No. 23.) During the final interview Petitioner acknowledged that he had performed oral sex on and masturbated TB and AB and could not rule out the possibility that he had done the same with others.

The final witness for the prosecutor was William McCoy, a computer forensic specialist with the Grand Blanc Township Police Department. He testified regarding incriminatory images and emails he found on Petitioner's laptop, cell phone, and camera.

The defense offered the testimony of two witnesses: Petitioner's mother and Petitioner's son. Petitioner's mother testified that she neither saw nor heard anything inappropriate in her backyard the night of the birthday party sleepover. (Trial Tr. V at 51-62, ECF No. 24.) Petitioner's son testified that his father never did any of the things the victims claimed.⁶ (Trial Tr. V at 63-79, ECF No. 24.)

Standard of Review

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "prevents federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38 (2011)....