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Phillips v. White

United States Court of Appeals, Sixth Circuit

March 15, 2017

Donald R. Phillips, Petitioner-Appellant,
Randy L. White, Warden, Respondent-Appellee.

          Argued: February 1, 2017

         Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:08-cv-00368-Gregory F. Van Tatenhove, District Judge.


          Robert Stander, JONES DAY, Washington, D.C., for Appellant.

          Todd D. Ferguson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

         ON BRIEF:

          Robert Stander, JONES DAY, Washington, D.C., for Appellant.

          Todd D. Ferguson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

          Before: COLE, Chief Judge; COOK and WHITE, Circuit Judges.


          COLE, Chief Judge.

          A Kentucky jury convicted Donald Phillips of two counts of first-degree murder. The jury considered the death penalty, but recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed. For over six years, Phillips sought post-conviction relief in state trial court based on ineffective assistance of counsel at sentencing. But no state court ever adjudicated the claim.

         Phillips sought habeas corpus relief in federal district court, which dismissed his petition. The court found that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")'s deferential standard governed its review of Phillips's claim. It held that Phillips had not shown prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because he had received one of the least severe sentences possible.

         We conclude that AEDPA's deferential standard is inapplicable to Phillips's claim because no state court ever decided it. We also conclude that Phillips's counsel was ineffective. In failing to mount a defense during a capital sentencing, he effectively deprived Phillips of counsel throughout a critical stage of trial. Accordingly, prejudice is presumed under United States v. Cronic, 466 U.S. 648, 658 (1984). Further, counsel's performance actually prejudiced Phillips under Strickland, 466 U.S. at 691-92. Thus, we reverse the district court's judgment and grant Phillips a conditional writ of habeas corpus, requiring the Commonwealth of Kentucky to resentence him within 90 days or release him.


         A. Guilt Phase

         In affirming Phillips's conviction and sentence on direct appeal, the state supreme court summarized the facts in this case as follows:

[Osa Lee Maggard and Geneva Young] were found shot to death on [Maggard's] porch in the early morning hours of July 22, 1999. Phillips and his wife were taken into custody in connection with the murders the next day. Phillips was indicted for [two counts of first-degree murder] on August 4, 1999. His wife was also indicted, but the [Commonwealth] later dismissed that indictment. Trial began on November 9, 2000 and proceeded as a capital case, with the jury panel being death-qualified. . . .
The primary witness for the Commonwealth was Phillips' stepdaughter - his wife's daughter[, Katherine Davidson]. [Davidson] shared a driveway with [Maggard] and lived up the hill from his house. [Davidson] testified that at about 12:15 a.m. she heard her mother's car coming up the hill; she recognized the car because she had driven it on previous occasions and was familiar with its loud muffler. When nobody came to the door, she went outside to see if anybody was there. At that point, she recognized Phillips' voice coming from the bottom of the hill. She described the following conversation between Phillips and [Maggard]:
Okay the, what I heard the conversation was I heard [Phillips], I heard them talking about what had happened prior something, him and [Maggard] had had a confrontation before and then I heard [Phillips] say well [Davidson] paid you fifteen and [my wife] paid you twenty. They was talking about thirty dollars. Said [Davidson] paid you fifteen and [my wife] twenty, that makes thirty-five dollars. He said that's five dollars over thirty dollars. He said that's five dollars, and then I heard [Maggard], he said go get [Davidson] and we will talk about this and when he said that then the shooting started and I went into the house . . . It was a long string of shots, it was like pow, pow, pow, pow, pow, I ain't for sure how many shots and then pow. By that time I was in the house when I heard you know the last shot.

(Ky. Sup. Ct. Order, App., pp. 126-27) (internal quotation marks omitted); see 28 U.S.C. § 2254(e)(1) (the state court's factual determinations are "presumed to be correct").

         Davidson also testified that 1) Phillips's wife had owed Young money, some of which Davidson had taken for herself; 2) Maggard had repeatedly harassed Phillips's wife about the debt; 3) Maggard carried a firearm and had previously fired shots towards Davidson's home; and 4) Phillips had been drinking and was "intoxicated" the night of the shooting. (Trial Tr. III, App., pp. 395-96.)

         A jury convicted Phillips of both counts of first-degree murder.

         B. Sentencing

         In Kentucky felony cases, the jury recommends a sentence to the judge, who may reject it in favor of another permitted by law. See Ky. Rev. Stat. Ann. §§ 532.055(2)(c); 532.070. Immediately after the verdict, the presiding judge, Cletus Maricle, asked both parties if they were prepared to proceed with sentencing. The Commonwealth said it was ready. Phillips's attorney, Stephan Charles, replied, "No, not really, " but neglected to request a continuance. (Trial Tr. VI, App., p. 876.) The judge excused the jury and asked Charles how long his presentation would take. Charles answered, "I have no idea Judge. As I said . . . several times through th[ese] proceedings, I didn't get into this as a death penalty case. I don't know anything about death penalty litigation." (Id. at 877) (emphasis added).

         Judge Maricle seems to have ignored Charles's admission, asking if he had prepared any jury instructions. Charles said no. The judge asked Charles if he had any objections to the Commonwealth's jury instructions. Charles again answered no. Charles consulted with Phillips for less than an hour prior to proceeding with the penalty phase of the trial.

         The jury returned and Judge Maricle invited the Commonwealth to make its opening statement. The Commonwealth noted that the legislature "has determined that there are certain situations under which murder would warrant a more serious punishment than it would otherwise. The term they use is aggravating circumstance." (Id. at 882.) The Commonwealth notified the jury that it had already found the aggravating circumstance of intentional, multiple deaths in this case. The Commonwealth identified 1) death, 2) life without parole, and 3) life with no possibility of parole for twenty-five years as the "more serious punishment[s]" warranted by the aggravating circumstance. (Id.)

         Then the court invited Charles to make his opening statement. Charles declined, clarifying, "I have nothing to say your honor." (Id. at 883.)

         Judge Maricle asked both parties if they wished to present any evidence. Neither did, so the judge provided the jury instructions. He explained that "[t]hose are the instructions that will be in the envelope with you when you go to the jury room." (Id. at 883-84.)

         Then Judge Maricle invited the Commonwealth to make its closing argument. The Commonwealth began by recounting the "cold bloodiness" of the "senseless killings." (Id. at 884.) Next, it reminded the jury that it had already found an aggravating factor. The jury had received verdict forms for five sentences: 1) the death penalty, 2) life imprisonment without parole, 3) life imprisonment with no possibility of parole for twenty-five years, 4) life imprisonment (with the possibility of parole before twenty-five years), and 5) twenty-to-fifty years of imprisonment. See Ky. Rev. Stat. Ann. § 532.030(1) (identifying the five sentences above as the potential penalties for someone convicted of a capital offense). But only the forms for the first three sentences acknowledged the jury had found an aggravating factor in Phillips's case. The Commonwealth continued, "When you take these verdict forms back with you, you will see . . . there are three sentences you can impose when you find an aggravating factor. It is a very awesome responsibility to determine which is the most appropriate penalty in this case." (Trial Tr. VI, App., p. 884.) In doing so, the Commonwealth suggested that the aggravating factor in Phillips's case prevented the jury from considering the fourth or fifth sentence. At the same time, the Commonwealth assured the jury that the "three sentences under which the aggravating circumstance has to be established . . . are definitely appropriate in this case." (Id. at 885.) This assertion would have been unnecessary if no other sentence were available.

         The Commonwealth closed with a pitch for the death penalty: "The evidence is certainly there [for it] and certainly warrants a consideration of [it]." (Id.)

         Judge Maricle gave Charles an opportunity to make a closing statement. Rather than clarifying the jury's sentencing options or advocating for a particular sentence, Charles remarked:

Ladies and gentlemen given the dispatch with which you resolved all the holes in the government's case that I spent two days pointing out, it's apparent to me that I'm some how not communicated with you during the first part of the trial. So ...

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