Phillips v. Superintendent, Ind. State Prison

• Decision Date: 24 April 2013
• Docket Number: CAUSE NO.: 3:11-CV-399-TLS
• Parties: BRADFORD PHILLIPS, Petitioner, v. SUPERINTENDENT, INDIANA STATE PRISON, Respondent.
• Court: U.S. District Court — Northern District of Indiana

BRADFORD PHILLIPS, Petitioner,

v.SUPERINTENDENT, INDIANA STATE PRISON, Respondent.

CAUSE NO.: 3:11-CV-399-TLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

SO ORDERED: April 24, 2013

OPINION AND ORDER

The Petitioner, Bradford Phillips, a prisoner confined at the Indiana State Prison, filed a Pro Se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 1], challenging his 2004 Marion County criminal convictions for murder and carrying a handgun without a license. The Petitioner presents six grounds in his Petition for Writ of Habeas Corpus. In ground one, the Petitioner asserts that he was denied access to the state courts because he was indigent; in ground two, he asserts that the judge pro tempore who presided over his trial lacked jurisdiction to do so; in ground three, he argues that he was denied effective assistance of trial counsel; in ground four, he asserts that his appellate counsel was ineffective; in ground five, he contends that the jury in his case was "misled as to its ability to consider a lesser included offense along with the definition and application of 'sudden heat'"(Pet. 5, ECF No. 1); and in ground six, he alleges that the "State's key witness was intimidated to change her testimony" at trial. (Id.) The Respondent argues that most of the Petitioner's claims are barred by the doctrine of procedural default, and that his non-defaulted claims lack merit.

After the Respondent filed his Return to Order to Show Cause [ECF No. 6] along with attached exhibits and a Memorandum in Support [ECF No. 7], the Petitioner requested a stay and abeyance so that he could adjudicate an additional collateral state procedure. The Petitioner alsofiled his Traverse [ECF No. 16] and a Memorandum in Support [ECF No. 17]. This Court denied the motion for a stay, but afforded the Petitioner until January 5, 2013, within which to supplement his Traverse if he wished. (Op. & Order, ECF No. 20.) The Petitioner has not supplemented his Traverse, and the time in which to do so has expired.

BACKGROUND

The Indiana Court of Appeals affirmed the Petitioner's convictions on June 15, 2005, (Mem. Decision, ECF No. 6-7), and the Indiana Supreme Court denied transfer on August 11, 2005 (Appellate Case History, ECF No. 6-2 at 4). The Petitioner filed a petition for post-conviction relief, which the Marion Superior Court denied on August 10, 2010. (Findings of Fact and Conclusions of Law Denying Post-Conviction Relief, ECF No. 6-9.) On procedural grounds, the Indiana Court of Appeals dismissed the Petitioner's appeal from the denial of post-conviction relief on February 7, 2011 (Appellate Case History, ECF No. 6-3 at 3), and the Indiana Supreme Court denied transfer on June 3, 2011 (id. at 4).

ANALYSIS

This Petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), see Lindh v. Murphy, 521 U.S. 320, 336 (1997), which allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). An application for habeas relief must meet the requirements of 28 U.S.C. § 2254(d), which provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim thatwas adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In reviewing a petition for federal collateral relief from a state court judgment of conviction, this Court must presume as correct the facts as found by the state courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); Ruvalcaba v. Chandler, 416 F.3d 555, 559-60 (7th Cir. 2005). Moreover, the Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ruvalcaba, 416 F.3d at 559-60.

The Indiana Court of Appeals affirmed the Petitioner's convictions on June 15, 2005. (Mem. Decision, ECF No. 6-7.) As stated by the Indiana Court of Appeals on direct appeal, the facts in the Petitioner's case are as follows:

During the early morning of February 18, 2002, Phillips and his girlfriend, Cherri Daye ("Daye"), were standing outside of their home arguing. Freddie Powell ("Powell") happened upon the two as he was walking on the opposite side of the street. Powell had been at a local bar with friends earlier. He stopped, remained on the opposite side of the street, and inquired about the couple's argument. Powell and Phillips exchanged harsh words. After Phillips's verbal confrontation with Powell, Powell walked away and turned the corner.

Phillips walked away from Daye. He also turned the corner. Daye could not see Phillips or Powell. A few minutes later, Daye heard three gunshots. Phillips had shot Powell. Powell fell face down in the street and died at the scene.

Daye went in her house after hearing the gunshots. Later that morning, Daye discovered a gun on her television. She spoke to Phillips. He told her that he had not meant to hurt or shoot anyone. She assumed that Philips had placed the gun on the television. She took the gun to her basement and hid it in a hairdryer. Then she moved the gun and placed it under the stairs at a nearby vacant house. A few daysafter the shooting, Daye told police the location of the gun.

(Mem. Decision 2-3, ECF No. 6-7.)

On direct appeal, the Petitioner argued that the trial court "committed fundamental error in giving the jury instructions on murder which denied [him] the right to have the jury consider whether he acted in sudden heat," that the trial court intimidated one of the witnesses, and that the trial court erred in sentencing him to an enhanced sentence. (Br. of the Appellant 1, ECF No. 6-4.) In his Petition for Transfer to the Indiana Supreme Court, the Petitioner raised only the jury instruction and witness intimidation claims. (Pet. for Transfer, ECF No. 6-8 at 3.)

In his petition for post-conviction relief, the Petitioner challenged the "validity of the judicial appointment of a judge pro tempore" and the effectiveness of his trial and appellate counsel. (Findings of Fact and Conclusions of Law Denying Post-Conviction Relief, ECF No. 6-9 at 5.) The trial court denied the Petitioner relief, and the Indiana Court of Appeals dismissed his appeal without reaching the merits because he did not file a timely motion to correct error in the trial court. (Appellate Case History, ECF No. 6-3 at 3.)

I. The Petitioner's Claim that the Trial Court Intimidated a Witness

In ground six of his habeas petition, the Petitioner asserts that the "State's key witness was intimidated to change her testimony during the Petitioner's trial." (Pet. 5.) The Petitioner raised this issue in his direct appeal, in which he argued that "the trial court told the State to get Ms. Day 'straightened out' or 'heads were going to roll.'" The Petitioner asserted that as a result of this exchange, "Ms. Day changed her testimony." (Br. of the Appellant 7.)

The State called Daye as a witness at trial. Because she initially made statements at trialinconsistent with statements she had made before trial concerning the gun, the deputy prosecutor asked the trial judge for permission to treat her as a hostile witness. Jurors were having trouble hearing Daye's testimony, so the trial judge "cautioned the deputy prosecutor that the witness should 'speak up.'" (Mem. Decision 12, ECF No. 6-7.) When Daye's testimony remained difficult to hear, the trial judge excused the jury and stated to the deputy prosecutor:

Have a seat. . . [T]his is your case, you wanted a jury trial, you've got a witness that the jury can't even hear. And I'm not going to continually interrupt and tell her to speak up. I'm going to give you about ten minutes to get her straightened out, and then if we're not ready to present a case in front of the jury then heads are going to roll.

(Id. 13.) "[W]hen the trial reconvened, Daye testified that she had found the gun on the television, placed it in the hairdryer in the basement, then removed the gun, and placed it under the stairs at a nearby house. She also testified that she did not hear Powell use racial epithets." (Id.)

In his appeal, the Petitioner argued "that the trial court's statement to the prosecutor implied some drastic action if Daye did not cooperate, i.e, testify in a manner consistent with the State's theory of the case." (Id.) The Court of Appeals of Indiana, however, concluded that:

While we cannot say that the trial court's choice of words was well conceived, for several reasons we discern no error here. First, Daye did not alter her testimony in the manner suggested by the State in the sidebar conversation. Second, there was no question that Phillips shot Powell with a gun; thus, whether anyone else had been in possession of the gun and whether Daye had seen the gun previously was of no moment. Third, in Phillips's statement to the police, heard by the jury, Phillips admitted that he gave the gun to Daye and that she walked toward the basement with the gun—essentially corroborating Daye's altered testimony about the gun. Fourth, the trial court did not comment upon Daye's credibility. Fifth, to the extent that the court's comments were related to Daye's testimony, the comments were directed to the inability of the jury to hear Daye's testimony. Sixth, prior to the trial court's statement, Daye had not testified whether she heard Powell use racial epithets toward

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