United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Magistrate Judge has entered a Report and Recommendation
(“R & R”) (Doc. No. 56) recommending that
Jarrod Phillips' Petition for Writ of Habeas Corpus (Doc.
No. 1) be denied and that no certificate of appealability
issue. Having conducted a de novo review of the
matter as required by Rule 72 of the Federal Rules of Civil
Procedure, and notwithstanding Phillips' Objections (Doc.
No 57) to the R & R, the Court agrees with the
recommended disposition. Accordingly, the R & R will be
adopted, Petitioner's objections will be overruled, and
the Petition will be dismissed.
September 8, 2009, Nathaniel Adefope, a professor at the
Tennessee State University (“TSU”) Agriculture
Resource Center, was murdered at his workplace. Phillips, who
also worked at TSU, was subsequently indicted by a Davidson
County, Tennessee grand jury, and charged with first degree
premeditated murder in violation of Tenn. Code Ann. §
39-13-202; aggravated robbery in violation of Tenn. Code Ann.
§ 39-13-403; and felony murder in violation of Tenn.
Code Ann. § 39-13-202.
January 25, 2012, Phillips pled guilty to a single count of
second degree murder. He was sentenced as a Range II offender
to 32 years of imprisonment.
months later, on October 18, 2012, Phillips filed a petition
for post-conviction relief. On July 15, 2013, he filed a
petition for writ of habeas corpus. Both petitions were filed
in the Twentieth Judicial District Court in Davidson County.
petition for writ of habeas corpus asserted that Phillips was
being illegally detained because he was sentence as a Range
II instead of a Range I offender. The state trial court
summarily dismissed the claim because the record indicated
that Phillips pled guilty to second degree murder in exchange
for a 32 year sentence. That conclusion was affirmed on
appeal because “petitioner entered a Hicks
plea, ” meaning that, by voluntarily pleading
guilty, petitioner “waive[d] any subsequent complaint
about offender classification and length of sentence,
‘so long as [the sentence did] not exceed the maximum
punishment for the plea offense.'” Phillips v.
Johnson, 2014 WL 1663109, at *2 (Tenn. Crim. App. April
23, 2014) (“Phillips I”) (quoting
Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007)).
The 32-year sentence imposed was permissible because second
degree murder is a Class A felony, and the sentencing range
under Tenn. Code Ann. § 40-35-111(b)(1) for a Range II,
Class A felony multiple offender is 25 to 40 years.
Id. at 3.
post-conviction proceedings, Phillips claimed that his guilty
plea was not knowing and voluntary because counsel failed to
explain to him that he would be pleading to an out-of-range
sentence, and failed to inform him that the State would not
call three jailhouse informants to testify against him at
trial. For those reasons, and also because he allegedly was
coerced into entering his plea, Phillips also argued that he
received the ineffective assistance of counsel. After a
hearing during which Phillips was represented by counsel, the
trial court denied post-conviction relief. That denial was
affirmed on appeal. Phillips v. State, Slip op. no.
M2014-01374-CCA-R3-PC (Tenn. Crim. App. April 15, 2015)
present Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 followed.
brings ten claims, all of which surround the knowingness or
voluntariness of his plea of guilt and the consequent
sentence. The Magistrate Judge's recommendation for
dismissal of all of those claims is two-fold. First, four of
Phillips' claims - One, Two, Four, and Nine - are subject
to dismissal on the merits because the Tennessee Court of
Criminal Appeals reasonably applied Boykin v.
Alabama, 395 U.S. 238 (1969) and Strickland v.
Washington, 466 U.S. 668 (1984). Second, the remaining
claims - Three, Five, Six, Seven, Eight and Ten - are
procedurally defaulted because they were not first raised in
the state trial court, or were not presented to the Court of
Criminal Appeals, either in post-conviction proceedings or in
the state habeas appeal.
the Antiterrorism and Effective Death Penalty Act, which
amended Section 2254 and applies to all habeas petitions
filed after April 24, 1996, Smith v. Robbins, 528
U.S. 259, 267 n.3 (2000), a federal court may not grant a
writ of habeas to a petitioner in state custody with respect
to any claim adjudicated on the merits in state court unless
(1) the state court's decision was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court . . . or (2)
the state court's decision was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.” Taylor v.
Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28
U.S.C. § 2254(d)). “A state-court decision is
considered ‘contrary to . . . clearly established
federal law' if it is ‘diametrically different,
opposite in character or nature, or mutually
opposed.'” Mahdi v. Bagley, 522 F.3d 631,
636-37 (6th Cir. 2008) (quoting Ivory v. Jackson,
509 F.3d 284, 291 (6th Cir. 2007)). “In order to
constitute an ‘unreasonable application of . . .
clearly established Federal law, ' a state-court decision
on the merits must be ‘objectively unreasonable, '
not simply erroneous or incorrect.” Id.
“Furthermore, ‘[t]he state court's findings
of fact are presumed to be correct unless they are rebutted
by ‘clear and convincing evidence.'”
asserts that (1) his sentence is illegal because he did not
have the requisite number of convictions to qualify as a
Range II offender, and did not knowingly waive his right to
be sentenced as a Range I offender (Claim One); (2) he did
not voluntarily plead guilty because (a) no one explained the
meaning of a “best interest” plea or (b) the
waiver of his right to be sentenced as a Range I offender
(Claim Two); and (3) he did not know until after his
sentencing the difference between Range I and Range II
offenders (Claim Four). He also asserts that trial counsel
failed to explain the difference between a Range I and Range
II offender (Claim Nine).
preliminary matter, there is nothing unconstitutional about
pleading guilty and agreeing to be sentenced within a higher
range. This is because “[t]he United States
Constitution does not require strict proportionality between
a crime and its punishment, ” and “a sentence
that falls within the maximum penalty authorized by statute
generally does not constitute ‘cruel and unusual
punishment.” Bryant v. Yukins, 39 F. App'x
121, 123 (6th Cir. 2002) (citing Harmelin v.
Michigan, 501 U.S. 957, 965 (1991); Austin v.
Jackson, 213 F.3d 298, 302 (6th Cir. 2000)).
Furthermore, under Tennessee law, “[a] defendant can
legally plead guilty and receive a longer sentence in Range
II or Range III when he is only a Range I offender by
statutory definition, when the sentence is part of a
negotiated plea agreement and the defendant receives
consideration, such as dismissed charges, in return.”
State v. Bigbee, 2015 WL 5968524, at *2 (Tenn. Crim.
App. Oct. 14, 2015) (citing, Hoover v. State, 215
S.W.3d 776, 779 (Tenn. 2007)). In other words, “even
though a defendant qualifies as only a Range I offender, that
defendant may validly receive a Range II multiple offender or
Range III persistent offender sentence under a plea bargain
as long as the plea was knowing and voluntary.”
Juan v. Lewis, 2008 WL 2219296, at *3 (Tenn. Crim.
App. May 29, 2008) ...