                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0245n.06

                                                    No. 11-1893
                                                                                                          FILED
                                UNITED STATES COURT OF APPEALS                                       Mar 08, 2013
                                     FOR THE SIXTH CIRCUIT                                    DEBORAH S. HUNT, Clerk

CHRISTOPHER PHELPS,

         Petitioner-Appellant,

v.                                                               ON APPEAL FROM THE UNITED
                                                                 STATES DISTRICT COURT FOR THE
WILLIE O. SMITH, WARDEN,                                         EASTERN DISTRICT OF MICHIGAN

         Respondent-Appellee.

                                                         /




BEFORE:           CLAY, COOK, and ROTH,* Circuit Judges.

         CLAY, Circuit Judge. Petitioner Christopher Phelps was convicted of three counts of

Criminal Sexual Conduct in the Second Degree, Mich. Comp. Laws § 750.520c(1)(b), by a jury in

Michigan state court. He now brings this petition for a writ of habeas corpus under 28 U.S.C. §

2254, claiming that the trial court’s ex parte communication with the jury violated his right to an

uncoerced jury. The district court denied the petition, but granted a certificate of appealability on

that question. For the following reasons, we AFFIRM the judgment of the district court.

                                            BACKGROUND

         A.       Procedural History



        *
         The Honorable Jane R. Roth, Circuit Judge for the United States Court of Appeals for the Third Circuit, sitting
by designation.
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        Defendant Christopher Phelps was convicted by jury, in Oakland County Circuit Court, on

March 25, 2005, of three counts of Criminal Sexual Conduct in the Second Degree, Mich. Comp.

Laws § 750.520c(1)(b). He was simultaneously acquitted of three counts of Criminal Sexual

Conduct in the First Degree, Mich. Comp. Laws § 750.520b(1)(b).1 Following a motion for a new

trial, which was denied following a hearing on April 20, 2005, Defendant was sentenced, on April

22, 2005, to concurrent terms of three-and-one-half to fifteen years in prison. Respondent Willie

Smith is the warden of Carson City Correctional Facility, where Defendant is serving his sentence.

        Defendant appealed his conviction to the Michigan Court of Appeals, but the appeal was

denied, and the Michigan Supreme Court refused to review the conviction. He brought a petition

for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan

on July 12, 2011. Defendant’s two claims for habeas relief were that the court’s ex parte

communication with the jury was unduly coercive and that the state court violated his right to present

a defense when it refused to permit him to introduce a prior sworn statement from a deceased

witness, his wife (the complainant’s mother). The district court denied Defendant’s petition, but

granted a certificate of appealability on the question of whether the state court’s ex parte

communication with the jury was unduly coercive. We took jurisdiction pursuant to 28 U.S.C.

§ 2253(a), but denied Defendant’s motion to expand the certificate of appealability.

        B.      Facts



        1
         A charge of first degree criminal sexual conduct requires sexual penetration, while a second
degree charge of criminal sexual conduct requires only that a “person engage[] in sexual contact with
another person . . . [who] is at least 13 but less than 16 years of age and . . . [t]he actor is a member
of the same household as the victim.” Mich. Comp. Laws § 750.520(c)(1)(b)(i).

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       Defendant was married to Shari Phelps. They lived in Southfield, Michigan, with Amber

Garant, Shari’s daughter. In 2003, Shari was in a car accident and was paralyzed from the chest

down. In 2004, Amber, along with her boyfriend, David Torode, went to a Southfield Police station

and met with Detective David Palmer. They alleged that since April 13, 2003, when Amber was 15,

Defendant had molested her. In a second statement, Amber alleged that Defendant had molested her

two-and-a-half-years earlier. She also alleged that Defendant had taken a series of lascivious

photographs of her with her friend, Nicole Bowersocks. Amber and David did not tell Palmer that

they had a sexual relationship. David also brought a memory stick from a digital camera to the

police, which contained copies of the photographs.

       Relying on Amber’s statements, the police executed a search warrant at Defendant’s home

and arrested him. The officers found pornography in Defendant’s bedroom, as well as a vibrator and

provocative clothing in Amber’s room. After reading him the Miranda warnings, two police

detectives interrogated Defendant for three hours. Defendant made no admissions until one-and-a-

half hours had passed, but then confessed that he had taken the photographs, and further admitted

to inappropriate sexual contact with Amber.

       At trial, Sergeant Shelide testified that Defendant had admitted to taking the photographs and

to sexual activities with Defendant. Detective Palmer corroborated this testimony, and added that

Amber and Torode had not disclosed their own relationship to the police. Bowersocks testified that

Defendant had taken lascivious photos of her and Amber, in sexually revealing clothes. Amber

testified that Defendant had purchased outfits and a vibrator for her, and had photographed her with




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her friend Nicole. She further testified that sometime after her mother had become paralyzed in a car

accident, Defendant had begun touching her sexually.

       The defense called a witness, a retired police officer, who testified as to the nature of police

interrogations. Luke Devroy, who had lived in Defendant’s home along with Torode, testified that

he had not seen anything suspicious about Defendant’s relationship with Amber, and that Defendant

had asked him to keep an eye on David and Amber. Defendant testified on his own behalf, and

denied the allegations. He also asserted that Amber was lying, and that the police had coerced him

into a confession through psychological trickery. The defense also sought to introduce prior sworn

testimony of Shari Phelps, who had died in January 2006. Previously, at a hearing in probate court,

Shari had testified that Amber had previously lied about abuse from Defendant. The court refused

to admit the statement into evidence.

       During voir dire, the trial court told potential jurors that deliberations could be as short as

five minutes or as long as five days. The judge also told the jurors that he had seen both, and neither

was better or worse. (R. 10, Opinion, July 12, 2011, at 14.) The jury began its deliberations on

Wednesday, March 23, 2005. The trial court reiterated its instruction that the deliberations could

be very quick or very long. On Thursday, March 24, 2005, at 2:30 p.m., the jury sent a note to the

judge, stating that they had not reached a decision, and were unsure how to proceed. The judge,

without counsel or Defendant present, told them “Keep deliberating, you have days to go.” (Id. at

15.) The next day, the court informed the prosecution and Defendant of the ex parte communication.

Defense counsel moved for a mistrial, and requested, in the alternative, that the court read an Allen

charge to the jury. The court denied both requests, but did inform the jury that it could adjourn


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deliberations early that day, if it chose to, so that jurors could observe Good Friday. The jurors

continued deliberating, and at 3:48 p.m., they returned a verdict convicting Defendant of the three

counts of Criminal Sexual Conduct in the Second Degree while acquitting him of the three first-

degree counts.

                                         ANALYSIS

       A.        Standard of Review

       Where a district court has denied a habeas petition, and issued a certificate of appealability,

“we review the district court’s legal conclusions de novo and its factual findings for clear error.”

Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012) (citing Smith v. Mitchell, 567 F.3d 246, 255 (6th

Cir. 2009)). The district court’s findings of fact are clearly erroneous when “we are left with the

definite and firm conviction that a mistake has been committed.” United States v. Canipe, 569 F.3d

597, 600 (6th Cir. 2009) (citing United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)).

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court

may not grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state

court2 unless the state adjudication:

       (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.




       2
        The government does not contest the district court’s ruling that Defendant’s claims are
exhausted.

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28 U.S.C. § 2254(d). A federal court may not issue the writ “simply because it 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.” Williams v. Taylor,

529 U.S. 362, 411 (2000). “[C]learly established federal law, as determined by the Supreme Court

of the United States” refers to the holdings, rather than dicta, of the decisions of the Supreme Court.

Howes v. Fields, --- U.S. ---, 132 S. Ct 1181, 1187 (2012) (citing Williams, 529 U.S. at 362).

        A decision is “contrary to” clearly established federal law where “the state court arrives at

a conclusion opposite to that reached by this Court on a question of law . . . [or] confronts facts that

are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the

opposite] result.” Williams, 529 U.S. at 405. A decision involves an unreasonable application “if

the state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Id. at 412–13. Furthermore, an unreasonable application must be

distinguished from an incorrect application. Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785

(2011) (quoting Williams, 529 U.S. at 410). A state court decision which is merely incorrect, rather

than unreasonable, is still entitled to deference by a federal court in a habeas proceeding. Id. “Our

task is not to determine whether the state court reached the correct outcome, but rather to determine

whether the court’s application of clearly established federal law is objectively unreasonable—‘a

substantially higher threshold.’” Hereford v. Warren, 536 F.3d 523, 527 (6th Cir. 2008) (quoting

Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007)). As a result, the more

general the rule, the greater the leeway accorded to a state court’s decision under federal habeas

review. Harrington, 131 S. Ct. at 786.


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         Under AEDPA, this Court examines the last state court decision on the merits. Jackson v.

Bradshaw, 681 F.3d 753, 760 (6th Cir. 2012). In this case, that decision is the judgment of the

Michigan Court of Appeals, People v. Phelps, No. 262367, 2006 WL 3498424, (Mich. Ct. App.

2006).

         B.      The Right to an Uncoerced Jury Verdict

         “Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that

body.” Lowenfeld v. Phelps, 484 U.S. 231, 241 (1988). “The due-process ‘principle that jurors may

not be coerced into surrendering views conscientiously held is so clear as to require no elaboration.’”

Lyell v. Renico, 470 F.3d 1177, 1182 (6th Cir. 2006) (quoting Jenkins v. United States, 380 U.S. 445,

446 (1965) (per curiam)). Nevertheless, the use of a supplemental jury charge has been explicitly

sanctioned by courts for over a century. In Allen v. United States, 164 U.S. 492, 501 (1896), the

Supreme Court upheld a verdict where the court had given a lengthy instruction to a deadlocked jury.

In that case, the court held that:

         While, undoubtedly, the verdict of the jury should represent the opinion of each
         individual juror, it by no means follows that opinions may not be changed by
         conference in the jury room. The very object of the jury system is to secure
         unanimity by a comparison of views, and by arguments among the jurors themselves.

Id. Since that decision, every circuit has approved at least some supplemental charge. Lowenfeld,

484 U.S. at 238 n.1 (collecting cases). Whether a judge’s statement to a jury is coercive is

considered “in its context and under all the circumstances.” Jenkins 380 U.S. at 446; accord

Lowenfeld, 484 U.S. at 237.

         Because of the fact-intensive nature of the inquiry into jury coercion, federal habeas review

is particularly deferential to the findings of the state court in this area of law. In Early v. Packer, 537

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U.S. 3 (2002), the Supreme Court approved a state court decision that held that there was no

coercion where—after twenty-eight hours of deliberations—the judge read aloud a note from the jury

identifying the sole hold-out, in which the other jurors questioned her capacity for reason. Id. at 4–6.

In that decision, the Supreme Court concluded its decision by stating that “[e]ven if we

agreed . . . that there was jury coercion, it is at least reasonable to conclude that there was not, which

means that the state court’s determination to that effect must stand.” Id. at 11. In Hardaway v.

Robinson, 655 F.3d 445 (6th Cir. 2011), this Court held that even where “the trial court’s statement

that ‘you will deliberate for as long as necessary’” was “similar to the mandatory language held to

be coercive in Jenkins,” there was no unreasonable application of federal law. Id. at 448.

        In addition, even in some of the circumstances in which the United States Supreme Court has

found jury coercion based on a judge’s instructions, it has not created “clearly established law” that

is applicable to state law proceedings. The results in Jenkins and Gypsum were both based on the

Court’s supervisory power, rather than on constitutional law.3 Early, 537 U.S. at 10; see generally

United States v. U.S. Gypsum Co., 438 U.S. 422 (1978). See also Wong v. Smith, 131 S. Ct. 10, 11

(2010) (“The clearly established law relevant to this case is sparse.”) (Alito, J., dissenting from a

denial of a writ of certiorari.)


        3
         In Jenkins, the Supreme Court reversed and remanded an armed robbery conviction in the
United States District Court for the District of Columbia, where the district court judge told the jury
that “[y]ou have got to reach a decision in this case.” Jenkins, 380 U.S. at 446. The case never
mentioned the Due Process Clause. See id. In United States v. U.S. Gypsum Co., manufacturers
were convicted in federal court under the Sherman Act, and the Supreme Court found that a judge’s
ex parte meeting alone with the foreman of the jury, in which the discussion turned into a substantive
supplemental instruction, was sufficient grounds for a Court of Appeals to overturn a verdict.
Gypsum, 438 U.S. at 461–62. The court noted, however, that the fact of the meeting alone was not
sufficient. Id. at 462. As in Jenkins, there was no discussion of the Due Process Clause. See id.

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        While federal review of this area is deferential, certain factors tend to increase the likelihood

that a particular instruction was coercive. In its supervisory capacity, the Supreme Court has held

that a federal court of appeals should overturn a verdict if it was reached after the trial court polled

the jury. Brasfield v. United States, 272 U.S. 448, 450 (1926); see also Lyell, 470 F.3d at 1190

(Clay, J., concurring). While this per se rule has not been extended to habeas review of state court

convictions, see, e.g. Lowenfeld, 484 U.S. at 238 n.3; Lyell at 1190, the Supreme Court has

suggested that combinations of polling with other circumstances might constitute coercion.

Lowenfeld at 241; Lyell, 470 F.3d at 1182–83. If the court has inquired into the numerical division

of the jurors, and received an answer, it is more likely that there was error requiring reversal. See

Lyell, 470 F.3d at 1182–83 (discussing Brasfield v. United States, 272 U.S. 448 (1926)). But if the

court has not inquired as to which side may prevail in the voting, even polling the jury may not

amount to coercion. See, e.g., Early, 537 U.S. at 6.

        In this case, the state court’s finding that the instruction was not coercive was not an

unreasonable one. The court, in essence, repeated an unobjectionable part of its instructions which

had been given before the jury began deliberations. Furthermore, it did not poll the jury or inquire

into its numerical division. And whatever evidence could point to coercion, such as returning the

next day with a mixed verdict, could also be reasonably interpreted as a lack of coercion. For

example, while one might make the conjecture that the jurors, feeling pressure to return a verdict,

compromised with one another and returned a verdict convicting on only the second-degree charges,

one could also see this as evidence that no jurors felt pressure to convict on the higher counts.

Finally, while the instructions were given ex parte, there is no evidence that the jury felt pressured,


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or reacted to the absence of counsel in any way, especially because the instruction given was a

repetition of earlier instructions.4 Accordingly, the state court’s decision was reasonable and this

Court will not disturb it.

                                          CONCLUSION

        For the foregoing reasons, the decision of the district court is AFFIRMED.




        4
          While the instruction itself was not coercive, there may be an argument that the fact that it
was ex parte is sufficient to render the verdict suspect. Defendant—and the district court—raise this
issue by framing it only as a factor that could lead this Court to consider the instruction itself
coercive. But in certain circumstances, the very fact of an ex parte instruction may be enough to
render a verdict constitutionally defective. See, e.g., Tate v. Morris, 909 F.2d 1485, at *3 (6th Cir.
1990) (table). However, and for this Defendant, critically, there is a distinction between the right
to be present at proceedings as cognizable under the Sixth Amendment and the right as cognizable
under the Fifth Amendment.
         While the Supreme Court “has uniformly found constitutional error without any showing of
prejudice when counsel was either totally absent, or prevented from assisting the accused during a
critical stage of the proceeding,” United States v. Cronic, 466 U.S. 648, 659 n.25 (1984), it has only
done so when the right implicated was found in the Sixth Amendment. This is because “[t]he
constitutional right to presence is rooted to a large extent in the confrontation clause of the Sixth
Amendment.” United States v. Gagnon, 470 U.S. 522, 526 (1985). So while there are cases in which
the defendant’s absence during a particular part of the proceedings is cognizable under the Sixth
Amendment, id., violations of that right are subject to harmless error analysis. See Tate, 909 F.2d
at *3–4; see also Rushen v. Spain, 464 U.S. 114, 140–41 (1983). If examined this way, this
instruction was harmless error, as it duplicated an instruction already approved of by defense
counsel.

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