Supreme Court of the United States

• fir1 1N8 -8132 J fl NA L

IN THE

SUPREME COURT OF THE UNITED STATES

ANTHONY D. PHILLIPS -PETITIONER (Your Name)

vs.

NOAH NAGY, WARDEN -RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT (NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

ANTHONY D. PHILLIPS *192886 (Your Name) LAKELAND CORRECTIONAL FACILITY. 141 FIRST ST. (Address)

COLDWATER, MI 49036 (City, State, Zip Code)

(Phone Number) QUESTIONS PRESENTED

During Petitioner Anthony D. Phillips state appellate court proceedings., the appellate panel addressed several constitutional errors and determined they were unpreserved constitutional claims and viewed them under plain error standards. The Michigan court of appeals panel concluded the unpreserved claims of constitutional• error did not affect Petitioner's substantial rights. The lower federal courts have conflicting case authority as to whether a constitutional error reviewed under plain-error analysis is considered an adjudication on the merits. The question is as follows:

WHETHER A CONSTITUTIONAL ERROR REVIEWED UNDER PLAIN ERROR STANDARDS IS AN ADJUDICATION ON THE MERITS; AND WHETHER AEDPA DEFERENTIAL STANDARDS OF REVIEW ARE APPLICABLE?

WHETHER MULTIPLE SIXTH AMENDMENT VIOLATIONS IN PETITIONER'S CASE INFECTED THE TRIAL WITH UNFAIRNESS AS TO MAKE THE RESULTING CONVICTION A DENIAL OF DUE PROCESS?

Where a state prosecutor has impermissibly introduced false inculpatory evidence for the jury to decide Petitioner's guilt or innocence. The question is as follows:

WHETHER JACKSON V. VIRGINIAN 443 U.S. 307 (1979) STANDARDS ARE APPLICABLE TO A CHALLENGE THAT THE STATE'S EVIDENCE IS INSUFFICIENT, WHERE THE JURY HAS BASED ITS VERDICT ON FALSE EVIDENCE? LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

iii. TABLE OF AUTHORITIES

CASES Alleyne v. United States, 570 U.S. 99 (2013) ...... 30 Berger v. United States, 295 U.S. 78 (1935) 19,26 Burden v. Zant, 498 U.S. 433 (1991) 24 Crawford v. Washington, 541 U.S. 36 (2004) ...... 19 Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...... 25,26 Douglas v. Workman, 560 F.3d 1156 (10 Cir. 2009) ...... 13,14 Flemings v. Metrish, 556 F.3d 520 (6th Cir. 2009) ...... 13 Frazier v. Jenkins, 770 F.3d 485 (6th Cir. 2014) ...... 13

In re Winship, 397 U.S. 358 (1970) ....26,29,30 Jackson v. Virginia, 443 U.S. 307 (1979) 27 Kyles v. Whitley, 514 U.S. 419 (1995) 20 Lee v. Commtr Alabama Dep'T of Corr., 726 F.3d 1172 (11th Cir. 2013) 14 Lee v. lilnois, 476 U.S. 530 (1986) 19 Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) 24 Miller v. Pate, 386 U.S. 1 (1967) 16 Mooney v. Holohan, 294 U.S. 103 (1935) 16 Napue v. Illinois, 360 U.S. 264 (1959) 16,20,26 Parker v. Matthews, 567 U.S. 37 (2012) 30 Richardson v. Palmer, 2017 U.S. Dist. LEXIS 219323 14 Rolan v. Coleman, 680 F.3d 311 (3rd Cir. 2012) ...... 14 Stephens v. Branker, 570 F.3d 198 (4th Cir. 2009) ...... 14 Stewart v. Trierweiler, 867 F.3d 633 (6th Cir. 2017) .....14

iv. Strickland v. Washington, 466 U.S. 668 (1984) 2l23

Trimble V. Bobby, 804 F.3d 767 (6th Cir. 2015) 13

Williams v. Taylor, 529 U.S. 362 (2000) 21

United States Constitution

Const Amendment VI 15,30

Const Amendment XIV 15,27,29,30

Statutes and Rules

Title 28 U.S.C. §2254 (d)(1) 20,23

Title 28 U.S.C. §2254 (d)(2) 17,22

Supreme Court Rule 10 24

V. TABLE OF CONTENTS

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUIONAL PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

SUMMARY OF ARGUMENT 10

REASONS FOR GRANTING THE PETITION 13

ARGUMENT I WHEN A STATE COURT APPLIES A PLAIN ERROR REVIEW OF A CONSTITUIONAL CLAIM; THE LOWER FEDERAL COURTS ARE APPLYING DIFFERENT STANDARDS OF REVIEW 13

ARGUMENT II MULTIPLE VIOLATIONS OF THE BILL OF RIGHTS INFECTED PETITIONER'S TRIAL WITH UNFAIRNESS AS TO MAKE THE RESULTING CONVICTION A DENIAL OF DUE PROCESS ...... 15

ARGUMENT III THE STATE'S EVIDENCE WAS INSUFFICIENT TO CONVICT PETITIONER 26

APPENDICES

APPENDIX A OPINION OF THE U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT ISSUED ON NOVEMBER 5, 2018 APPENDIX B OPINION AND ORDER BY THE U.S. DISTRICT COURT OF MICHIGAN DENYING PETITION FOR WRIT OF HABEAS CORPUS ISSUED ON DECEMBER 19, 2016 APPENDIX C ORDER FROM DECEMBER 12, 2018 BY THE U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT • DENYING PETITION FOR REHEARING ENBANC APPENDIX D MICHIGAN SUPREME COURT ORDER FROM OCTOBER 28, 2013 APPENDIX B PER CURIAM OPINION ISSUED BY THE MICHIGAN COURT OF APPEALS ON MAY 21, 2013 APPENDIX F ORDER FROM THIRD CIRCUIT COURT FOR WAYNE COUNTY DENYING MOTION FOR NEW TRIAL

vi. APPENDIX G SEARCH WARRANT AND RETURN FROM MARCH 11, 1987 APPENDIX H INTER-OFFICE MEMORANDUM FROM APRIL 16, 1987

vii. IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x] For cases from federal courts:

A The opinion of the United States court of appeals appears at Appendix to the petition and is [ ] reported at ; or, [ ] 'has been designated for publication but is not yet reported; or, [)l is unpublished.

B The opinion of the United States district court appears at Appendix to the petition and is

{ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [X] is unpublished.

[x] For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix D to the petition and is [1 reported at ; or, [ ] has been designated for publication but is not yet reported; or, [x] is unpublished.

The opinion of the Michigan Court of Appeals court appears at Appendix E to the petition and is [ ] reported at ; or, [ II has been designated for publication but is not yet reported; or, [X] is unpublished.

IF JURISDICTION

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my ease was November 5, 2018

[ ] No petition for rehearing was timely filed in my case.

[X] A timely petition for rehearing was denied by the United States Court of Appeals on the following date: December 12, 2018 ,and a copy of the order denying rehearing appears at Appendix C

[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on ______(date) in Application No. A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date: and a copy of the order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence 15,30

Section 1 of the Fourteenth Amendment to the United States Constitution provides in relevant part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, lTbëty, or property, withtdprocess of—law . . 15727729T30

3. STATEMENT OF THE CASE

PROCEEDINGS: Petitioner Anthony D. Phillips was tried and convicted of first degree felony murder in 2010 for the 1987 killing of Lacey Tarver at 11318 Piedmont in Detroit. Trial began August 23, 2010 in Wayne County Circuit Court before the Hon. Michael Hathaway, with Prosecutor Augustus Hutting and Defense Counsel Sequoia Dubose. On September 13, 2010, Judge Hathaway sentenced Defendant to prison for life without the possibility of parole. An evidentiary hearing was held in the Circuit Court June 2, 16, and 20, 2011. The Court of Appeals affirmed May 21, 2013. The Michigan Supreme Court denied leave to appeal on October 28, 2013. A Petition for Habeas Corpus was timely filed in the United States District Court, Eastern District of Michigan. On December 19, 2016, Judge Nancy Edmunds denied Habeas Corpus and Certificate of Appealability. On August 7, 2017, the 6th Circuit Court of Appeals, issued a partial Certificate of Appealability. FACTS: Dr. Cheryl Loewe testified to an autopsy on Mr. Lacey Tarver by Dr. Marilee Fraser in 1987. (T. I, 244-271). Off. Carl Kimber testified to being dispatched to the residence at 11318 Piedmont in Detroit on March 4, 1987, arriving about 1:45 a.m. 4. - He found a broken window in the basement, with blood on the broken pieces and running down the wall. He found a tissue on the table with blood on it, and a Band-Aid can, and other items. He used the same gloves for the entire 21/2 hours of evidence collecting. (T. H, 9, 27-32, 34-35, 43, 51, 135). He saw a deceased black male the NE bedroom with a stab wound on throat and trauma to his head. (T. II, 34). Forensic Biologist Paula Lytle testified that Tarver and Petitioner both had Type 0 Blood. She described several items of Type 0 Blood that were found. (T. II, 143-158). The broken glass from the window, however, had Type B Blood. (T. Ii, 150). She also testified to a jacket brought to her by police, with bullet holes and Type 0 Blood. (T. Il, 158-164). Erica Ridley, daughter of the deceased, testified that her parents were divorced at the time, and she was 11 years old and stayed with her mother. She and her twin brother Eric went to stay about every weekend. Carmeletha Phillips, also known as Carmen, lived with her father and his girl friend for about 3 or 4 years, but they had broken up by March 1987. She had met Carmen's two brothers, Petitioner Anthony Phillips, and Robert or Bobby Phillips. Her father was supposed to pick up her and Eric on February 28, but he never arrived. (T. Ill, 5-17). Edgar Tarver, Lacey's brother, testified Carmeletha had lived with Lacey about two years, and met her brothers Anthony and Robert at Lacey's house. After getting a note from Debra Moorer asking about Lacey, he went to check it out March 4th and found 5. Lacey dead inside and called police. Several items were missing, including computer tv and stereo (T. III, 36-59). Jennifer Summer of the Michigan State Police testified to cutting samples to be tested for DNA. (T. III 84-89). She discussed problems that can affect contamination, and the need for the evidence collector to frequently change gloves to avoid cross- contamination. (T. lii, 96-101). Catherine Maggert testified to a spot of blood on a checkbook, which had 3 out of 13 Loci to test, and blood on a tissue, that had 12 out of 13 Loci to test. (1. III, 134-135). She had no way of knowing whether any of it was contaminated before it got to her, or how the evidence was stored for decades in Detroit. (T. III, 144-146). Andrea Halvorson of the Michigan State Police testified the markers on the checkbook would belong to 1 in 211 African- Americans, or 1 in 5856 Caucasians, and Petitioner was included. (T. Ill, 190-191). She testified regarding the tissue that the chances that the blood spot came from anyone other than Petitioner was 1 in 4 quadrillion. (T. Ill, 187). However, she admitted that this statistic would not apply to a brother of the suspect, and that the only way to rule out the brother would be to test the brother, which was not done. (T. Ill, 197-199). Marcia McCleary testified to fingerprint analysis done by John Frelich and Fred Moore. (T. lIt, 202-226). Petitioner's print was found on a band-aid box in the bathroom. (1. III, 215). There were various other prints around the house that did not belong to Petitioner or 6. - Tarver, and remained unidentified. (T. Ill, 216-219). She could not tell how long the prints were there. (T. II!, 225-226). Debbie Moorer testified she was dating Lacey. She met Petitioner at Lacey's house about a month before his death. She knew Petitioner as the brother of Carmen, who had been living with Lacey until recently. (T. IV, 7-9). She was concerned when she did not hear from him and went to the house, saw the broken window, and left a note for Edgar. (T. IV, 12-13). Off. David Newkirk testified to seeing the body in the house, and Sgt. James Bivens testified to his observations at the scene. Off. Charles Braxton testified the file reflected a seizure of a jacket from Petitioner's residence in a search after the killing. (1. IV, 50). The actual reports of Off. Kramer both say that no evidence was seized during his execution of that search warrant. Off. Barbara Kozloff testified some evidence was destroyed, and that she sought DNA sample from the Defendant, which he gave in Virginia. (T. IV, 57-58) The defense called one witness, Carmeletha Allen, formerly Phillips. She has two brothers, Petitioner and Robert. She lived at 11318 Piedmont with Lacey Tarver about 311/2 to 4 years, until they broke up Thanksgiving of 1986. She later married Kenneth Allen. (T. IV, 80-85). While she lived there, her mother, sister, and two brothers would often visit the house on Piedmont. There were no problems between Anthony and Lacey, and Anthony was welcome in their home. Even after the break up she continued to see Lacey 7. - about various things, including bills. On the week of the killing, she sent Anthony to the house to get a stove hood for her mother. She testified that she did the house keeping, after she left, Lacey left the house messy. (T. IV, 85-95). After a previous break-in at their home, her brother Robert was not welcome to come back there. (T. IV, 96). Anthony worked at a roofing company at the time, but had recently taken a trip to Okinawa to visit a relative. When she advised him in 1987 that the police wanted to question him, he promptly came back to Detroit. (T. IV, 98- 99). He is married with children and has lived and worked in Virginia for many years. (T. IV, 102-110). At post-trial hearings, appellate Prosecutor Williams conceded the jacket testified to by Lt. Braxton was actually taken by Detroit Police in 1986, before this 1987 killing. (T. April 22, 2011, 8). (T. June 2, 2011, 4). LL Charles Braxton testified he did not seize the jacket himself, or view the seizure, nor did he review the police investigative file before his testimony at the trial. When Prosecutor Hutting asked him about what the file reflected, he affirmed what the prosecutor said, though he now admits the jacket was not taken shortly after the killing. He "figured" that it was taken at that time. (T. June 2, 2011, 15-20). He testified the file did not "reflect" the jacket being taken in March 1987. (T. June 2, 2011, 23-24). Hutting's information that the jacket was seized after the killing did not come from Braxton. (T. June 2, 2011, 26). Braxton trusted what Prosecutor Hutting stated in the question and answered accordingly. (T. June 2, 2011, 29-30). 8. - When the jacket came up at trial, counsel did not object, nor did he insist that anyone show him which part of the file "reflected" that it was seized after the killing, or ask Mr. Braxton to show the evidence of the 1987 seizure. Yet, Attorney Dubose knew of the report (Search warrant and Return to Search Warrant'), of April 16, 1987, that Defendant's home had been searched and nothing had been seized. He now feels it would have been useful to attack the claim

that the jacket was taken in 1987. (T. June 21 64-67). Prosecutor Hutting testified "Mr. Braxton's Testimony" was that the jacket was seized by police from Petitioner's residence shortly after the killing. Yet, he was aware of Sgt. Kramer's report saying that nothing was seized during that search of Defendant's Residence, and the Return to Search Warrant saying the same, and had no document declaring that the jacket was seized after the killing. He also had no witness the jacket was seized in 1987. The purpose of his questioning to Braxton about what the file reflected was to present to the jury that it was taken from Petitioner's residence shortly after the killing. He assumed the jacket was .taken in the 1987 search warrant because of a report from the lab, even though that report does not state the date of seizure. If he had known at trial what he knows now, he would not have presented it to the jury. (T. June 16, 8-20). Defendant and his natural brother Robert Phillips had often visited Lacey Tarver's house. Defendant frequently visited after Carmeletha had broken up with Tarver. After a previous break- in, Tarver had banned Robert from the house. Defendant had often 9. done repair work there, had cut himself and used Band Aids. (T. June

20, 4-161 22). SUMMARY OF ARGUMENT Most of the physical evidence in this case was seized in 1987, before DNA Testing was common, but the trial was in 2010. The defense tried to put on evidence to show the possibility of contamination by the officer using old methods of evidence collection. This was not allowed. The prosecutor was allowed to put on evidence to disprove the possibility of contamination. Another piece of evidence was blood on a tissue found in the house, which is consistent with Petitioner and with his brother, and is only 93% complete. During the questioning of prosecution witnesses, the prosecutor was allowed to establish Lacey Tarver was a "neat freak" who would not allow a bloody piece of tissue to stay there. The defenseattempted to contradict this testimony with testimony from defense witness Carmeletha Allen, Defendant's sister, Lacey's former girlfriend, that she always did the house work and Lacey did not., and that the last time she saw the house after she and Lacey broke up, it was in disarray (which would explain a bloody tissue not being immediately discarded). The prosecutor was allowed to prove neatness, but the defense was barred from presenting evidence of the contrary. The defense tried to put on information about frequent visits to Tarver's house by Petitioner, who was doing fix-up work at the house. The judge would not allow it. The testimony would have shown how 10. - Petitioner's fingerprints could have gotten on a Band-Aid box, and blood on a tissue, but the Judge excluded it. The defense tried to put on evidence of the Petitioner's brother being an unemployed drug addict, to suggest that the killer might have been the brother, but the Judge excluded it. In all these ways, the prosecution was allowed to prosecute, but the defense was not allowed to defend. The constitutional right to present a defense was violated. The prosecutor asked a leading question of Lt. Braxton to get Braxton to give testimony (admitted by the prosecutor's appellate counsel to be false) that police had seized a bloody jacket showing signs of a struggle in Petitioner's size from Petitioner's home right after the killing. The jacket was actually seized the year before the killing. The bloody jacket was used effectively by the prosecutor to add to their bare minimum case against Petitioner. The findings harmless error against Petitioner. The findings of harmless error were unreasonable, as was the finding of "other ample evidence" against Petitioner. They presented the jacket as evidence of the March 1987 bloody struggle. Considering that is the very thing Petitioner was being charged with, to find the false jacket evidence and argument unimportant was unreasonable. Leaving aside the scientific evidence, there is no evidence linking Petitioner even partially to this crime. There was no eyewitness testimony that Petitioner was the killer, no testimony that Petitioner was anywhere near the Tarver home at the time of the death, no 11. testimony Petitioner had any disputes with Tarver or had any reason to kill him, or stated an intent to kill Tarver, or to rob him. Petitioner was not found in possession of the murder weapon, or in possession of property stolen at the time of the killing. As discussed below, the prosecution did not prove that the blood on the tissue belonged to Petitioner, and did not prove that the blood on the tissue had anything to do with the killing, instead of being the product of an injury during Petitioner's work on the home. Moreover, the blood stain on the broken window used to get access to the home was Type B Blood, and Petitioner was Type 0. The evidence was bare minimum, therefore, the constitutional errors were not harmless.

12. REASONS FOR GRANTING THE PETITION

WHEN A STATE COURT APPLIES A PLAIN ERROR REVIEW OF A CONSTITUTIONAL CLAIM; THE LOWER FEDERAL COURTS ARE APPLYING DIFFERENT STANDARDS OF REVIEW. Petitioner Anthony D. Phillips (hereinafter "Petitioner") in Pro Se, submits the constitutional errors committed during his state court proceedings entitled him to Habeas Corpus Relief. Whether reviewed under a De Novo or Plain Error Standard. During Petitioner's Sixth Circuit Court of Appeals proceeding, the panel deemed Petitioner's claims that his right to present a defense, confrontation clause and prosecutorial misconduct claims were unpreserved and applied plain error review. The Sixth Circuit noted "We have reached varying conclusions as to whether plain error review by a state court constitutes adjudication on the merits." Citing to Frazier v. Jenkins, 770 F. 3d 485, 496 n..5 (6th Cir. 2014) and Fleming v. Metrish, 556 F. 3d 520, 532. (6th Cir. 2009) See Appendix A. The Sixth Circuit determined the ambiguity of their rulings did not affect the decision, because none of Petitioner's unpreserved claims can survive even de novo review citing to Tumble V Bobby, 804 F. 3d 767, 777 (6th Cir. 2015). As noted by the Sixth Circuit, their decisions are in opposite direction. In comparison to other federal courts, the decisions are split. In Douglas v. Workman, 560 F. 3d 1156. 1177-1179 (10th Cir. 13. - 2009) the court stated when a state court applies plain error review in disposing a federal claim, the decision on the merits to the extent that the state court finds the claim lacks merit under federal law".. ."Where a state court denies relief for what it recognizes or assumes to be federal error, because of the Petitioner's failure to satisfy some independent state law predicate, the decision was not on the merits and, assuming an excuse to procedural bar, the federal court would be left to resolve the substantive claim de novo, unconstrained by §2254(d). Compare other rulings in opposite directions: Lee v. Comm'r, Alabama Dep't of Corr., 726 F. 3d 1172, 1207-1210 (11th Cir. 2013)(citing cases where plain error may apply): Rolan V. Coleman, 680 F. 3d 311. 319-321 (3rd Cir. 2012)(discussion as to whether cases were addressed on other procedural grounds); and Stephens v. Branker, 570 F. 3d 198. 208 (4th Cir. 2009). The concurring judgment by Kethiedge in Petitioner's proceeding, thought Stewart v. Trierweiler, 867 F. 3d 633 (6th Cir. 2017) resolved the ambiguity in regards to plain error review by a state court. See

Appendix A. Cf. Richardson v. Palmer, 2017 U.S. Dist. Lexis 219323*83 (Noting the Trierweiler Court did not directly address or resolve the underlying dispute. For example, what constitutes "reasoned elaboration of an issue under federal law," and what constitutes "ambiguous" analysis by a state court. Therefore, the lower federal court's decisions are in conflict and it is imperative that this Supreme Court resolve the split in the circuit 14. and district courts. Petitioner respectfully requests appointment of counsel to make oral argument before the court and to file a brief detailing what standard should be used by a federal court after a state court applies a plain error review to a constitutional error.

MULTIPLE VIOLATIONS OF THE BILL OF RIGHTS INFECTED PETITIONER'S TRIAL WITH UNFAIRNESS AS TO MAKE THE RESULTING CONVICTION A DENIAL OF DUE PROCESS. The Sixth Amendment to the United States Constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to... an impartial jury of the state... to be confronted with the the witnesses against him.. .and to have the assistance of counsel • for his defence."

This case concerns the application of the above principles as clearly established in several Supreme Court decisions. Petitioner raised independent constitutional claims involving multiple confrontation violations, the right to present a defense, prosecutorial misconduct and ineffective assistance of counsel. Petitioner contends each one of his constitutional claims being reviewed individually, would entitle him to Habeas Corpus Relief. However, when viewed through the Fourteenth Amendment's Due Process Clause, the overall affect each claim had on his trial deprived Petitioner of due process and the right to a fair trial. U.S. Const. Amend XIV. 15. In Mooney v.. Holohan. 294 U.S. 103 (1935), this court long ago made it clear that deliberate deception of a court and jurors by representation of known false evidence is incompatible with rudimentary demands of justice. ""id., 294 U.S. at 103. In Napue v. Illinois. 360 U.S. 264 (1959) the court said "the same result obtains when the state, although not soliciting false evidence, allows it to be uncorrected when it appears." Petitioner finds the case of Miller v. Pate, 386 U.S. 1 (1967) practically indistinguishable from his case. The Miller Court stated there were no eyewitnesses to the brutal crime petitioner was charged with committing. Throughout the trial, the prosecution described a key piece of evidence as "bloody shorts" or "stained with blood." The prosecution argued the victim's blood type matched the blood on the shorts. The Court noted the "blood stained shorts" clearly played a vital part in the case as it linked the chain of circumstantial evidence against petitioner. It was later revealed the short's stained were actually paint, which the prosecutor knew before trial. The Miller Court stated the prosecution deliberately misrepresented the truth at the trial. Turning to the prosecution's misconduct in Petitioner's case, it began with the questioning by him to police officer Lt. Charles Braxton. Braxton testified he worked on the case of the homicide at 11318 Piedmont (T. IV, 49). He went on to give testimony about what the file "reflected," that is, he gave testimony about writings of other people [which testimony was false, as described below](T. IV, 16. 50): 0. OKAY, ALRIGHT, AND DOES THE FILE ALSO REFLECT THAT A SEARCH WARRANT WAS EXECUTED AT 9074 WESTWOOD IN THE CITY OF DETROIT?

A. YES.

Q. OKAY. AND WAS THAT TURNED OVER TO ANY- BODY?

A. IT WAS TAKEN TO THE CRIME LAB AS WELL. Off. Braxton went on to describe the bullet holes in the jacket, and human blood on the jacket, a jacket which he did not remember personally seeing, as he was assisting a Sgt. David Kramer, deceased by the time of trial. Off. Barbara Kozioff testified that by the time she was assigned to the case years later (the trial was 23 years after the killing), the jacket that was seized had been destroyed by police (T. IV, 57). Before the testimony of Braxton and Kozloff, Lab Tech Paula Lytle was questioned about this jacket (T. II, 158-164). She described Type 0 Blood on the jacket, the same type as the deceased, Lacey Tarver. (T. Il, 143). [This was also the blood type of Petitioner (T. 1, 157)]. The state court and the federal district court found the jacket evidence was not important, but these findings were an unreasonable determination of the facts in light of the state court proceedings. 28 U.S.C. §2254 (d)(2). The state record reveals the prosecutor argued to the jury: 17. Where is the clothes? You know, why doesn't the prosecutor have the bloody clothes that Mr. Phillips had on and connect it up that way. That's because if you saw blood and you get blood on you during the course of this beating, the last thing that you're gonna do, okay, is keep those clothes. You're gonna get rid of them, You're gonna get rid of them.

But maybe he made a mistake because that jacket. You know, we got the jacket. First of all, it comes out of the Defendant's home. That's where he was living. It's a large size jacket. And what do we have on the inside of it? We have Type 0 Blood.. We have 0 Type Blood.

Is it the deceased blood on it the Defendant's blood? I really can't tell you that its possible it could be either one of those all right.

It's possible that it could very well be the Defendant's blood after he was cut and every- thing, stuck, his hand back in the jacket and got it there. Something, that you would overlook. But, Paula Lytle didn't overlook it. She found it. Though the prosecutor, who admitted reading Off. Kramer's report and search warrant return, knew that the person who did the search wrote twice that the jacket was not seized in the post-killing search of Petitioner's residence, he deliberately had Braxton testify that the file "reflects" that Off. Kramer seized the jacket at that time (T. IV, 50). The file does not reflect that, and the prosecutor had his witness directly mislead the jury. At the evidentiary hearing, the prosecutor testified that he based his conclusion on a report by Lab Tech Paula Lytle, who did not attend the search, and whose report does not 18. - include a date of property seizure. Prosecutor Hutting knew multiple reports of the officer who performed the search did not reflect the jacket was taken after the killing, but he improperly used leading questions, and Lt. Braxton admitted at the evidentiary hearing that he gave the false testimony about the jacket, because he trusted prosecutor Hutting (T. June 2, 2011, 29-30). Hutting gave the false information, and the witness agreed. This demonstrates the very danger that the rules on leading questions are designed to prevent. To justify his conduct, prosecutor Hutting noted that he often finds that police officers make mistakes in their reports (1. June 16, 2011, 19). Petitioner submits this is inadequate to justify presenting as fact from the prosecutor's mouth contradiction of the multiple records from the person who actually did the search, on the basis of a Lab Tech's Report from someone who did not attend the search, and whose report does not contradict Sgt. Kramer. It denies due process for witness testimony to be based upon trust of the prosecutor rather than upon personal knowledge,

Berger v. United States, 295 U.S. 78 (1935). Even if the file had reflected what the prosecutor asserted, we would have ordinary constitutional error, violation of the right to confrontation. Crawford v. Washington, 541 U.S. 36 (2004). But, we have a much worse violation here, because the jury was misled. The use of unreliable or misleading evidence to convict an accused is a violation of due process of law. Lee v. Illinois, 476 U.S.

530 (1986). 19. - The prosecutor may not legitimately deceive the jury. Napue V.

Illinois, 350 U.S. 264 (1959).: The knowledge and conduct of the police is attributable to the prosecutor for purposes of this type of constitutional violation. Kyle v. Whitley, 514 U.S. 419. 437-438 (1995). The false evidence about the date the jacket was seized, turned the jacket into evidence of a March 1987 bloody struggle. Considering that is the very thing Petitioner was being charged with, for the state court's to find the false jacket evidence and argument unimportant was objectively unreasonable. The error was prejudicial and the state court's decision was contrary to and/or an unreasonable application of clearly established federal law. 28 U.S.C.

§2254 (d)(1). Petitioner raised an independent claim that his trial counsel was ineffective for failing to reasonably investigate, object to, and present counter-evidence to, the claim that the jacket had any connection to the case at all. The person who allegedly seized it did not testify. That person's report expressly denies seizing any evidence during the execution of the search warrant, once trial counsel heard the prosecutor asserting facts to the witness, linking Petitioner to a bloody jacket that could not possibly have been related to the crime, he should have objected and requested of the court to strike the record of any reference to the jacket and asked for a cautionary instruction be given to the jury to disregard any mention of the jacket. Moreover, he should have objected to the violation of the rules 20. prohibiting the attorney from acting as a witness. Petitioner's case reveals that trial counsel was aware his client was not going to testify, and the only plausible trial strategy would be to show the lack of any significant physical evidence, as the scientific evidence did not conclusively show the only person to commit this crime was Petitioner. Trial counsel knew the prosecutor had no motive for the crime, and the link between the jacket and circumstantial evidence was critical to the state's case. Failure to object to objectionable testimony damaging to Petitioner's defense, is ineffective assistance of counsel. Strickland v.

Washington, 466 U.S. 668 (1984). In Williams v.. Taylor, 529 U.S. 362 (2000), the court explained that Strickland's prejudice prong is directed at whether the trial was fundamentally unreliable or unfair. "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitled him." 529 U.S. 393 n..17. Clearly Petitioner's trial counsel did prejudice the defense and deprived him of a trial whose result was reliable or fair. Williams, supra. The Michigan Court of Appeals agreed that trial counsel's performance in failing to investigate the jacket fell below an objective standard of reasonableness. However, it concluded the trial court did not err in finding the admission of the jacket affected the outcome of the proceeding. Petitioner contends both the trial court and Michigan Court of 21. Appeals findings of fact were unreasonable in light of the evidence presented during the state court proceedings 28 U.S.C. §2254 (d)(2). Petitioner finds Sixth Circuit Judge Moore's dissenting opinion in part, to support his position. Judge Moore found (Opinion 24-25): But, as everyone now agrees, the jacket had nothing to do with Tarver's murder. Id.. at *45 As the majority reasoned analysis demonstrates, Maj. Op. at 16-20, Anthony Phillip's trial counsel was constitutionally deficient when he failed to investigate the jacket and object to its admissibility.

Judge Moore went on to explain why it is clear that the state court finding of other overwhelming evidence against Petitioner was unreasonable and had to be rejected: The state court's description of the other evidence inking Phillips to the murder as significant is a vast overstatement. The other evidence was a tissue found in the kitchen, the checkbook found in a dresser drawer in a bedroom, and the Band-Aid box in the bath room. Id. *2. Together, this evidence proved that Phillips had been in Tarver's house some- time before the murder, and during that time he had touched the Band-Aid box and had bled (although not necessarily on the same visit). But there was no dispute that Phillip's has been in Tarver's house before the murder. When Philip's sister Carmen Allen was dating Tarver Phillip's and his father did all the plumbing, painting, and other work around the house. Id. at *1. When Allen moved out of the house about four months before the murder, Phillip's helped her retrieve her belongings. Id. And a week before the murder Phillips went to Tarver's house to retrieve a stove hood. Id. During any of these activities, Phillips may have cut himself and may have touched 22. the Band-Aid box. Thus, all of this evidence merely proves that Phillips had been in Tarver's house. a fact not in dispute and not inculpatory. Furthermore there was fingerprint

evidence that individual - whose prints "neither matched {the[ Defendant nor

Tarver" - had been in the house. Id. at *3

There was very little evidence linking Phillips to the murder. The bloody jacket was the most inculpatory piece of evidence; without it, the prosecution's case is equally as consistent with innocence as with guilt. Thus, there is a reasonable probability without the introduction of the jacket, the result of the trial would have been different, Strickland, 466 U.S. at 696 ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support").

Judge Moore concluded with her analysis that the state court findings of harmless was unreasonable: Consequently, the state court's conclusion that there was not a reasonable probability that the jury would have had reasonable doubt, Strickland, 466 U.S. at 695, was an unreasonable application of clearly established federal law, as determined by the Supreme Court, 28 U5..C. §2254 (d)(1). In conducting its analysis, the state court said that the DNA and fingerprint evidence was overwhelming evidence of Phillips guilt, without considering what this evidence act- usually shows. The evidence speaks overwhelming to the fact that Phillips was in Tarver's house at some point in time and is entirely silent as to whether Phillips was the murderer. Furthermore, the fingerprint evidence demonstrates that there was an unidentified third party at the murder scene as well. In sum, the state court's consideration of the evidence 23. unreasonable inflated the probative nature of the remainder of the prosecution's case against Phillips and was, therefore, an unreasonable application of Strickland. Judge Stranch held that the false evidence was prejudicial, but although the state court finding of harmless error was wrong, she could not find it was unreasonable. She also ruled that without Petitioner showing that the prosecutor had deliberately put on false evidence, she could not grant Habeas Corpus Relief. (Opinion. 21- 22). Judge Moore seems to be the only federal or state judge who is aware that the "presumption of correctness" applies to facts not only favorable to the state, but to the Petitioner as well. See Burden v. Zant. 498 U.S. 433 (1991) [finding the lower court erred in failing to apply presumption of correctness to facts favorable to Petitioner]; Martin v. Rose. 744 F. 2d 1245. 1252 (6th Cir. 1984).

Petitioner understands that Certiorari Review involves questions of exceptional importance. Petitioner contends the Michigan Court of Appeals decision is contrary to and/or an unreasonable application of clearly established federal law. However, in relation to Petitioner's prosecutorial misconduct claims, this petition involves questions of exceptional importance as to: 1) What standard should be used to determine constitutional errors reviewed under plain-error standard; 2) What standard should be used to determine whether the 24. prosecutor deliberately presented false testimony; 3) What standard should be used to determine whether a witness deliberately presented false testimony; 4) Whether false testimony that plays a major role in convicting someone is legal depending on whether the Defendant can prove that the prosecutor who presented the false evidence knew it was false; 5) Whether it is reasonable for a state court to find other evidence "overwhelming" where the legitimately evidence points equally to two different suspects; 6) Whether, where the presentation of the false evidence "undermines confidence in the outcome, and thus creates a reasonable probability that the outcome would have been different, which makes a state court finding of harmless error unreasonable." All of the 3 panel Sixth Circuit Judges concurred that false evidence was presented against Petitioner. This case is unique because of 3 very differing opinions on the legal questions presented. It is farther unique because 2 of the 3 judges concurred that the false evidence presented against Petitioner was prejudicial and was reasonably likely to have affected the verdict. The clearly established federal law relevant here is Donnelly v. DeChristoforo, 416 U.S. 637 (1974) where the court stated that when specific guarantees of the Bill of Rights are involved, this court has taken special care to assure that prosecutor conduct in no way impermissibly infringes upon them. 415 U.S. at 643. The Donnelly Court explained that a prosecutor's improper comments will be held to violate the constitution only if they "so infected the trial with unfairness as to make the resulting conviction a denial of due 25. process." Id. Petitioner asserts his case fits squarely in the category of cases where this court has found the prosecutor's conduct did infect the trial with unfairness. In closing, Petitioner believes one point is worthy of mentioning, and that is the fact prosecutor Hutting did admit during the postconviction hearing that after reading the postconviction motion filed by Attorney Lawrence, the jacket should not have been introduced in the case. However, this same motion was supported by the "same" information that Hutting admitted on the stand he was familiar with prior to the trial. Which was the "inter-office memorandum" and "return to search warrant." Which mean Hutting knew and deliberately introduced false evidence or reasonably should have known the evidence was false and impermissibly introduced it. Said misconduct crossed the line and struck a foul bow that amounted to blatant and prejudicial error. Berger supra; Donnelly, supra. It is reasonably likely the jacket affected the judgment of the jury. Napue. supra.

THE STATE'S EVIDENCE WAS INSUFFICIENT TO CONVICT PETITIONER

Petitioner raised an independent claim that the state's evidence was insufficient to sustain his conviction for first degree murder. This relevant clearly established federal law is found in In re

Winship, 397 U.S. 358 (1970) and the sufficiency of evidence 26. standard established in Jackson v. Virginia. 443 U.S. 307 (1979), which states: "[T]he Fourteenth Amendment protects a Defendant in a criminal case against conviction expect upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."

The Jackson Court discussed the importance of the rule established in Winship:

"The standard of proof beyond a reasonable Doubt, said the court, plays a vital role in the American scheme of criminal procedure, because it operates to give concrete substance to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding.

It is clear that leaving aside the so-called scientific evidence, there is not a shred of evidence linking Petitioner as the one to kill Lacey Tarver. There was no testimony that Petitioner was anywhere near the Tarver home at the time of his death. No witness testified Petitioner had any disputes with Tarver or would have any reason to kill him. No witness testified Petitioner had stated an intent to kill Tarver, or to rob him. Petitioner was not found in possession of the murder weapon, or in possession of property stolen at the time of the killing. The "scientific evidence" in this case falls very short of meeting the constitutional standard discussed in Jackson v. Virginia. As outlined in Argument Il, supra, the "scientific evidence was presented 27. in four forms: 1) The testimony about the blood on the checkbook (T. III, 136). This evidence includes Petitioner in a group of thousands of possible perpetrators. It does not link the crime to Petitioner at all; 2) Testimony that Petitioner's thumbprint was on a Band-Aid box in the bathroom. While this testimony does provide a basis for a reasonable trier of fact to conclude that Petitioner was in the home at some time, to say that the time was when Tarver was being killed is sheer speculation. The prosecution expert Marcia McCleary testified that there was no way for her to tell how tong the prints had been on the Band-Aid box (T. It!, 225-226). Furthermore, there were other prints of others, unable to be identified, found on the Band-Aid box and other locations inside the house (T. III, 216-219). The testimony about prints of Petitioner does not prove beyond a reasonable doubt him to be the killer; 3) The jacket that supposedly proved Petitioner's involvement in a "bloody struggle" around the time of the killing and was presented to the jury as potent evidence against Petitioner, even though it would not prove he was guilty of this particularly assaultive crime. Which the prosecution has admitted after trial was false evidence and 4) leaving only one piece of evidence, the spot of blood on a piece of tissue found in the house (T. II, 29). The analysis requires that 2 questions be asked: was the blood on the tissue proven beyond a reasonable doubt to be the blood of Petitioner, and was the blood on the tissue proven beyond a reasonable doubt to be the blood of the killer. To make evidence sufficient, he the prosecutor would have to 28. make both showings, and here, they made neither. According to the prosecution's own expert witness, the scientific evidence in the case did not rule out Petitioner's brother Robert as the perpetrator. Petitioner finds its worthy of mentioning that there was seized blood that was directly related to the break-in, that is, the blood on the broken glass and below the broken glass, where the break-in took place at the basement window (T. I, 27). This blood was never subjected to a DNA test, not because it could not be tested, but because the analyst thought the other blood samples would be stronger. (T. Ill, 93-94). In other words, a deliberate decision was made to not test the most important evidence in the case for DNA, Expert Paula Lytle, testified that the blood on the glass was Type B (T. Il, 150). Considering Petitioner has Type 0 Blood (T. II, 15), this is yet another basis which to find the evidence insufficient. The Michigan Court of Appeals adjudication of this claim was objectively unreasonable in relation to the Jackson Standard the Michigan Appellate Panel did state: "While any of the evidence alone might not be sufficient to support Defendant's conviction, taken as a whole and drawing all reasonable inferences in favor of the jury verdict, it was sufficient."

Under Winship, in order for a conviction to pass constitutional muster, the state must prove every element of the crime beyond a reasonable doubt. 397 U.S at 364. The Winship case clearly established the 14th Amendment requires proof beyond a reasonable 29. doubt and is shown upon the essentials of due process and fair treatment. Id. As stated in Winship, "there is always in litigation a margin of error, error in fact finding, which both parties must take into account." Id. Petitioner contends the state appellate court failed to take into account that the trier of fact resolved the weight of the evidence, in part, on false evidence. As stated in Parker v. Matthews, 567 U.S. 37,43 (2012) we have said that it is the responsibility of the jury not the court to decide what conclusions should be drawn from evidence admitted at trial. The •state appellate court decision usurped its authority by attempting to diminish the probative value of the false evidence and decided the state's evidence did meet the constitutional standard, which invaded the province of the jury. This type of adjudication of a constitutional claim prevents the protection afforded by the Sixth Amendment... which entitled the accused to a trial by a fair and impartial jury of the state. See Alleyne v. United States, 570 U.S. 99; 133 S.Ct. 2151, 2156 (2013) ("The Sixth Amendment right to a trial by an impartial jury, in conjunction with our due process precedents, requires that each element of the crime be proved to the jury beyond a reasonable doubt"). Petitioner's right to a fair and impartial trial by jury was denied and the due process clause of the Fourteenth Amendment was violated, and the state's evidence was insufficient to sustain Petitioner's conviction for first degree murder. Petitioner is entitled Habeas 30. Corpus RelIef. This Court may find the better course is to grant certiorari and establish the standard for a Jackson claim where the jury decided the facts based upon legal and illegally introduced evidence.

3]-. CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted, 01 MWn, 401 MOP 1W;MU 0 m

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