Jonathan Leigh Phillips v. George Million

*The Honorable Glen M. Williams, Senior United States District
Judge for the Western District of Virginia, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0202P (6th Cir.)
File Name: 04a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JONATHAN LEIGH PHILLIPS,
Petitioner-Appellant,
v.
GEORGE MILLION,
Respondent-Appellee.
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No. 03-5561
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 01-00479—Karl S. Forester, Chief District Judge.
Argued: June 10, 2004
Decided and Filed: June 30, 2004
Before: MARTIN and SUTTON, Circuit Judges;
WILLIAMS, Senior District Judge.*
_________________
COUNSEL
ARGUED: John A. Palombi, KENTUCKY DEPARTMENT
OF PUBLIC ADVOCACY, Frankfort, Kentucky, for
2 Phillips v. Million No. 03-5561
Appellant. Gregory C. Fuchs, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
ON BRIEF: John A. Palombi, KENTUCKY
DEPARTMENT OF PUBLIC ADVOCACY, Frankfort,
Kentucky, for Appellant. Gregory C. Fuchs, OFFICE OF
THE ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Jonathan Leigh
Phillips appeals the district court's denial of his petition for a
writ of habeas corpus. For the reasons below, we AFFIRM.
I.
On November 28, 1996, Mr. Phillips, along with Terry
Burchett and Natasha Yates, a minor, set out in a car to
purchase crack cocaine. Mr. Phillips took a gun with him.
He located a street dealer and purchased a "rock" of crack
cocaine. Returning to the vehicle, Mr. Phillips got into an
argument with John Demarco Johnson, who had observed, but
not participated in, the crack-cocaine transaction. As Mr.
Phillips was getting back into the car, Mr. Johnson threw a
bottle toward Mr. Phillips. The argument evolved into a
gunfight with Mr. Phillips and Mr. Johnson firing numerous
shots at each other. As Mr. Phillips drove away from the
shootout, he noticed that Ms. Yates had been fatally wounded.
The parties agree that Mr. Johnson fired the bullet that killed
Ms. Yates.
Mr. Phillips and Mr. Johnson were jointly tried before the
same jury in a Kentucky state court. Mr. Phillips was found
guilty of wanton murder and tampering with physical
evidence. He received a twenty-six year sentence. The
Kentucky Supreme Court affirmed the decision and denied

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No. 03-5561 Phillips v. Million 3
Mr. Phillips's request for a rehearing. Phillips v.
Commonwealth, 17 S.W.3d 870 (Ky. 2000). After the United
States Supreme Court denied Mr. Phillips's petition for a writ
of certiorari, he sought habeas corpus relief under 28 U.S.C.
§ 2254 in the United States District Court for the Eastern
District of Kentucky. The district court denied his petition,
and he appealed.
II.
In habeas proceedings, our Court reviews a district court's
legal conclusions de novo and its factual findings for clear
error. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 418
(6th Cir. 2003). The controlling law is set forth in 28 U.S.C.
§ 2254(d). It states that we may grant a petition for a writ of
habeas corpus from a person held in custody pursuant to the
judgment of a state court only if the judgment: "(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." Ibid. In Williams v. Taylor,
529 U.S. 362 (2000), the Supreme Court clarified when a
state-court decision was "contrary to" clearly established
Supreme Court case law. The Court held that "[a] state-court
decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the
governing law set forth in our cases." Id. at 405. Further, it
held that "[a] state-court decision will also be contrary to this
Court's clearly established precedent if the state court
confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a
result different from our precedent." Id. at 406.
III.
Mr. Phillips makes three arguments on appeal. First, he
argues that the Kentucky state courts and the district court
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violated the federal constitutional requirement that a
defendant have personal guilt in order to be convicted of an
offense. Second, he argues that the Kentucky Supreme Court
and the district court denied him due process by affirming the
Kentucky trial court's refusal to give a jury instruction on self-
defense under a state statute he believes should not apply.
Third, he argues that the Kentucky courts and the district
court denied him a fair trial by affirming his joint prosecution
with Mr. Johnson. We disagree.
A.
Mr. Phillips was not punished for the acts of another in
violation of any federal constitutional right. The district court
correctly noted that "federal habeas corpus relief does not lie
for errors of state law," and "that it is not the province of the
federal habeas court to reexamine state-court determinations
on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-
68 (1991); see also Cooey v. Coyle, 289 F.3d 882, 902 (6th
Cir. 2002). Whether one can be found guilty for wanton
murder under Kentucky law when one recklessly exposes
another to a shootout is a question for the Kentucky courts.
The Kentucky Supreme Court, in this case, held that such
conduct is punishable. Phillips, 17 S.W.3d at 875, and we see
no reason to challenge the highest Kentucky court on a
Kentucky-law question.
Mr. Phillips, however, believes that his argument raises a
federal constitutional question, and to get it under the purview
of 28 U.S.C. § 2254(d), cites two cases: United States v.
White, 322 U.S. 694 (1944), and Scales v. United States, 367
U.S. 203, 224-25 (1961). As did the district court, we believe
the cases cited are both factually distinguishable and set forth
no precedent that controls, or for that matter speaks to, the
issue Mr. Phillips raises.
White involved a union's duty to respond to a subpoena.
Early on in the opinion, the Court declared: "[t]he only issue
in this case relates to the nature and scope of the

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No. 03-5561 Phillips v. Million 5
constitutional privilege against self-incrimination . . . . Our
attention is directed solely to the right of an officer of a union
to claim the privilege against self-incrimination under the
circumstances here presented." White, 322 U.S. at 697-98.
We do not see how self-incrimination case law supports Mr.
Phillips's contention as to personal guilt.
Scales held that active membership in an organization
plotting to overthrow the government could constitute
criminal behavior. Scales, 367 U.S. at 251. The Court in
Scales did note that "[i]n our jurisprudence guilt is personal,"
id. at 224, but that principle, stated in dicta, will not invalidate
Mr. Phillips's conviction. Mr. Phillips engaged in the
behavior for which he was punished. The actions for which
he was convicted were personal to him. Phillips, 17 S.W.3d
at 875. He engaged in the shootout; he recklessly and
wantonly exposed Ms. Yates to danger.
B.
We also agree with the district court as to Mr. Phillips's
second argument. Mr. Phillips offered no United States
Supreme Court authority suggesting that the Kentucky courts
unreasonably applied clearly established federal law in
denying him a jury instruction on self-defense. Our review of
the Supreme Court case law finds only one Supreme Court
opinion discussing the denial of a self-defense instruction and
due process, and that was mentioned as a hypothetical in a
dissent. Gilmore v. Taylor, 508 U.S. 333, 359 (1993)
(Blackmun, J., dissenting). Because there is no controlling
Supreme Court authority which contradicts the state court
ruling, and because this claim does not involve an
unreasonable determination of fact, Mr. Phillips's argument
gives us little basis on which we can act. 28 U.S.C.
§ 2254(d).
We have previously held that "[s]tate-law trial errors will
not warrant habeas relief unless the error rises to the level of
depriving the defendant of fundamental fairness in the trial
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process." Hutchinson v. Bell, 303 F.3d 720, 731 (6th Cir.
2002) (internal citations and quotations omitted). The
Kentucky Supreme Court affirmed the non-issuance of the
instruction under section 503.120(2) of the Kentucky Revised
Statutes. Phillips, 17 S.W.3d at 875. Finding the trial court's
denial of the instruction expressly authorized by Kentucky
law, and finding no United States Supreme Court precedent
to the contrary, we do not think that Mr. Phillips's argument
raises a question of fundamental fairness.
C.
Lastly, we agree with the district court that the joint
prosecution of Mr. Phillips and Mr. Johnson before the same
jury did not deny Mr. Phillips a fair trial. We first look to
Kentucky law to determine whether a motion to sever should
have been granted. See Hutchinson v. Bell, 303 F.3d 720, 731
(6th Cir. 2002). All the Kentucky courts in this case held that
the simultaneous trying of Mr. Phillips and Mr. Johnson was
not prejudicial and was proper. As we noted above, state trial
errors do not warrant habeas relief unless the errors are so
egregious that they deny the defendant fundamental fairness.
Ibid. We do not believe that to be the case here.
Mr. Phillips points us to the case of Zafiro v. United States,
506 U.S. 534 (1993), to support his claim of error. Zafiro
involved the interpretation of Federal Rules of Criminal
Procedure 8, 14, and 18, not the United States Constitution.
Zafiro thus has no precedential weight in reviewing state
court proceedings on due process grounds, but even if that
were not true, the case lends little support to Mr. Phillips.
It is true, as Mr. Phillips points out, that the Zafiro Court
stated that "if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt
or innocence" then severance should be granted. Id. at 539.
But it is also true that the Court noted that "[t]here is a
preference in the federal system for joint trials of defendants

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No. 03-5561 Phillips v. Million 7
who are indicted together[,]" id. at 537, that "[m]utually
antagonistic defenses are not prejudicial per se[,]" id. at 538,
and that "[j]oint trials 'play a vital role in the criminal justice
system,'" id. at 537. We do not believe the prejudice Mr.
Phillips suffered from being tried with Mr. Johnson, if there
was any, was sufficiently serious to jeopardize the jury's
ability to determine his guilt or innocence.
The Kentucky Supreme Court upheld Mr. Phillips's
conviction because the Court found his engaging in a firefight
with Mr. Johnson evidenced an "extreme indifference to
Yates's life" thereby causing her death. Phillips, 17 S.W.3d
at 875. Mr. Phillips does not contest that he engaged in the
shootout. Given the great tolerance of joint trials, and Mr.
Phillips's admission of this pivotal fact, we find that the joint
trial of Mr. Phillips and Mr. Johnson did not violate any
federal law.
Accordingly, we AFFIRM the judgment of the district
court.

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