           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2     Phillips v. Million                           No. 03-5561
        ELECTRONIC CITATION: 2004 FED App. 0202P (6th Cir.)
                    File Name: 04a0202p.06                            Appellant.    Gregory C. Fuchs, OFFICE OF THE
                                                                      ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
                                                                      ON BRIEF:         John A. Palombi, KENTUCKY
UNITED STATES COURT OF APPEALS                                        DEPARTMENT OF PUBLIC ADVOCACY, Frankfort,
                                                                      Kentucky, for Appellant. Gregory C. Fuchs, OFFICE OF
                  FOR THE SIXTH CIRCUIT                               THE ATTORNEY GENERAL, Frankfort, Kentucky, for
                    _________________                                 Appellee.

 JONATHAN LEIGH PHILLIPS,         X                                                        _________________
          Petitioner-Appellant, -
                                   -                                                           OPINION
                                   -   No. 03-5561                                         _________________
            v.                     -
                                    >                                   BOYCE F. MARTIN, JR., Circuit Judge. Jonathan Leigh
                                   ,                                  Phillips appeals the district court's denial of his petition for a
 GEORGE MILLION ,                  -
         Respondent-Appellee. -                                       writ of habeas corpus. For the reasons below, we AFFIRM.
                                  N                                                                   I.
      Appeal from the United States District Court
    for the Eastern District of Kentucky at Lexington.                  On November 28, 1996, Mr. Phillips, along with Terry
  No. 01-00479—Karl S. Forester, Chief District Judge.                Burchett and Natasha Yates, a minor, set out in a car to
                                                                      purchase crack cocaine. Mr. Phillips took a gun with him.
                     Argued: June 10, 2004                            He located a street dealer and purchased a "rock" of crack
                                                                      cocaine. Returning to the vehicle, Mr. Phillips got into an
               Decided and Filed: June 30, 2004                       argument with John Demarco Johnson, who had observed, but
                                                                      not participated in, the crack-cocaine transaction. As Mr.
        Before: MARTIN and SUTTON, Circuit Judges;                    Phillips was getting back into the car, Mr. Johnson threw a
              WILLIAMS, Senior District Judge.*                       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.
                           COUNSEL                                    The parties agree that Mr. Johnson fired the bullet that killed
                                                                      Ms. Yates.
ARGUED: John A. Palombi, KENTUCKY DEPARTMENT
OF PUBLIC ADVOCACY, Frankfort, Kentucky, for                            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
    *
     The Honorable Glen M. Williams, Senior United States District    Kentucky Supreme Court affirmed the decision and denied
Judge for the Western District of Virginia, sitting by designation.

                                1
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Mr. Phillips's request for a rehearing.           Phillips v.       violated the federal constitutional requirement that a
Commonwealth, 17 S.W.3d 870 (Ky. 2000). After the United            defendant have personal guilt in order to be convicted of an
States Supreme Court denied Mr. Phillips's petition for a writ      offense. Second, he argues that the Kentucky Supreme Court
of certiorari, he sought habeas corpus relief under 28 U.S.C.       and the district court denied him due process by affirming the
§ 2254 in the United States District Court for the Eastern          Kentucky trial court's refusal to give a jury instruction on self-
District of Kentucky. The district court denied his petition,       defense under a state statute he believes should not apply.
and he appealed.                                                    Third, he argues that the Kentucky courts and the district
                                                                    court denied him a fair trial by affirming his joint prosecution
                               II.                                  with Mr. Johnson. We disagree.
   In habeas proceedings, our Court reviews a district court's                                     A.
legal conclusions de novo and its factual findings for clear
error. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 418              Mr. Phillips was not punished for the acts of another in
(6th Cir. 2003). The controlling law is set forth in 28 U.S.C.      violation of any federal constitutional right. The district court
§ 2254(d). It states that we may grant a petition for a writ of     correctly noted that "federal habeas corpus relief does not lie
habeas corpus from a person held in custody pursuant to the         for errors of state law," and "that it is not the province of the
judgment of a state court only if the judgment: "(1) resulted       federal habeas court to reexamine state-court determinations
in a decision that was contrary to, or involved an                  on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-
unreasonable application of, clearly established Federal law,       68 (1991); see also Cooey v. Coyle, 289 F.3d 882, 902 (6th
as determined by the Supreme Court of the United States; or         Cir. 2002). Whether one can be found guilty for wanton
(2) resulted in a decision that was based on an unreasonable        murder under Kentucky law when one recklessly exposes
determination of the facts in light of the evidence presented       another to a shootout is a question for the Kentucky courts.
in the State court proceeding." Ibid. In Williams v. Taylor,        The Kentucky Supreme Court, in this case, held that such
529 U.S. 362 (2000), the Supreme Court clarified when a             conduct is punishable. Phillips, 17 S.W.3d at 875, and we see
state-court decision was "contrary to" clearly established          no reason to challenge the highest Kentucky court on a
Supreme Court case law. The Court held that "[a] state-court        Kentucky-law question.
decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the       Mr. Phillips, however, believes that his argument raises a
governing law set forth in our cases." Id. at 405. Further, it      federal constitutional question, and to get it under the purview
held that "[a] state-court decision will also be contrary to this   of 28 U.S.C. § 2254(d), cites two cases: United States v.
Court's clearly established precedent if the state court            White, 322 U.S. 694 (1944), and Scales v. United States, 367
confronts a set of facts that are materially indistinguishable      U.S. 203, 224-25 (1961). As did the district court, we believe
from a decision of this Court and nevertheless arrives at a         the cases cited are both factually distinguishable and set forth
result different from our precedent." Id. at 406.                   no precedent that controls, or for that matter speaks to, the
                                                                    issue Mr. Phillips raises.
                              III.
                                                                      White involved a union's duty to respond to a subpoena.
  Mr. Phillips makes three arguments on appeal. First, he           Early on in the opinion, the Court declared: "[t]he only issue
argues that the Kentucky state courts and the district court        in this case relates to the nature and scope of the
No. 03-5561                             Phillips v. Million       5    6    Phillips v. Million                          No. 03-5561

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