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Phillips v. Perry

United States District Court, N.D. California

June 25, 2019

SUSAN PERRY, Respondent.


          WILLIAM H. ORRICK United States District Judge.


         Petitioner Darryl Keith Phillips seeks federal habeas relief from his state convictions for elder abuse and other crimes on grounds he received ineffective assistance of counsel and the prosecutor attempted to kidnap and kill the victim. None of his claims has merit. The petition is DENIED.


         In 2010, Phillips “began a relationship with retired schoolteacher Janice Lacy, then isolated her from her family, took control of her financial affairs, and failed to ensure she received medical treatment for her diabetes.” (Ans., State Appellate Decision, Dkt. No. 15-11 at 3.)[1] After three years of living with Phillips, Lacy “was found in a profoundly demented mental state and suffering from life-threatening high blood sugar.” (Id.) In October 2013, police arrested Phillips at Lacy's house, while paramedics assessed, treated, and transported her to the hospital. (Id. at 9.)

         In 2014, Phillips was convicted by a San Mateo County Superior Court jury of elder abuse, falsifying a document to be used in evidence, and misdemeanor obstruction of an officer in the course of her duties. (Id. at 11.) The document Phillips falsified was a power of attorney form he prepared and later invoked “to support his claim to speak on Janice's behalf.” (Id. at 17.)

         The jury also found that Phillips had prior convictions. (Id. at 11.) A sentence of nine years and four months was imposed. (Id.) Phillips's efforts to overturn his conviction in state court were unsuccessful, except that the state appellate court corrected “a conceded error in the calculation of Phillips's presentence custody credits.” People v. Phillips, No. A142990, 2016 WL 4366771 at *1 (Cal.Ct.App. Aug. 16, 2016). This federal habeas petition followed.

         As grounds for federal habeas relief, Phillips alleges (i) the prosecutor conspired with a police officer and a paramedic to kidnap and kill the victim; (ii) the state appellate court failed to address his claims; (iii) the trial court falsified a probable cause declaration; (iv) the prosecutor committed misconduct; and (v) defense counsel rendered ineffective assistance.[2]

         These claims were not raised on direct appeal, but rather were presented to the state courts collaterally, by way of habeas petitions, all of which were summarily denied. When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This “[i]ndependent review is not a de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “[W]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

         Rather than filing a traverse, Phillips has filed a motion for the appointment of counsel. (Dkt. No. 22.)


         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court 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). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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.” 28 U.S.C. § 2254(d).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.


         i. Conspiracy to Kill the Victim

         Phillips alleges that the prosecutor, a police officer, and a paramedic conspired to kidnap and murder the victim. (Pet., Dkt. No. 1 at 7.) This is how he interprets a paramedic testing Lacy's blood sugar in response to a police request to do so, and taking her to the hospital.[3] According to Phillips, there was no need for Lacy to go to the hospital “until the prosecutor & police tried to kill her.” (Id. at 9.) To Phillips, “[t]his was an attempted murder and kidnapping to falsify a jury trial against petitioner.” (Id.)

         This claim is nonsensical. It would require that before charges were filed, the prosecutor knew he would be the one to bring Phillips to trial. And it would require that the prosecutor conspire with paramedics and a police officer to kill Lacy in the hope that this would frame Phillips and secure a conviction. There no evidence to support this assertion. It could not have occurred unless the prosecutor had perfect knowledge of the future, conspired in advance with the paramedic and police officer, and then arranged to have them be the persons on call the day Phillips was arrested and Lacy was treated.

         Also, Phillips has not shown how any of this entitles him to habeas relief. Phillips was charged with elder abuse, not with murder. The purported conspiracy to kidnap and kill Lacy would not “falsify a jury trial” against Phillips for elder abuse-the two are not connected in any plausible way.

         Phillips also asserts that the jury never heard about the alleged conspiracy. (Pet., Dkt. No. 1 at 9.) The record flatly contradicts him. The jury heard an audio recording of the events, read a transcript of the audio recording, and was made aware of Phillips's belief that there was a kidnapping. (Ans., Dkt. No. 15-4 at 8ff; 46.)

         Upon an independent review of the record, I conclude that the state court's rejection of this claim was not objectively unreasonable and is therefore ...

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