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Phillips v. Johnson

United States District Court, M.D. Tennessee, Nashville Division

November 30, 2017

DEBRA K. JOHNSON, Warden Respondent.



         The 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.

         I. Background

         On 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.

         On 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.

         Nine 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.

         The 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, ”[1] 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.[2]

         In the 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) (“Phillips II”).[3]

         The present Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 followed.

         II. Legal Analysis

         Petitioner 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.

         A. Exhausted Claims

         Under 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.'” Id.

         Petitioner 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).

         As a 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) ...

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