Phillips, et al v. Calderon, et al

Filing 353

ORDER Granting in Part Writ of Habeas Corpus 1 , signed by District Judge Anthony W. Ishii on 6/11/13. CASE CLOSED (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD LOUIS ARNOLD PHILLIPS,

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Petitioner,
vs.
KEVIN CHAPPELL, as Warden of
San Quentin State Prison,
Respondent.

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Case No.: 1:92-cv-05167 – AWI
DEATH PENALTY CASE

ORDER GRANTING IN PART WRIT OF
HABEAS CORPUS

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Petitioner Richard Louis Arnold Phillips (“Phillips”) filed a petition for writ of habeas corpus

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on March 4, 1992, challenging his state conviction and death eligibility determination. Phillips was

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convicted of the December 7, 1977 first degree murder of Bruce Bartulis and attempted murder of

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Ronald Rose, two counts of robbery, and the personal use of a firearm. The special circumstance of

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murder during the commission of a robbery was found true and the jury returned a verdict sentencing

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Phillips to death on February 1, 1980. Phillips’ conviction and death eligibility determination were

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affirmed by the California Supreme Court, but his death sentence was reversed due to the trial court’s

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failure to give a reasonable doubt instruction regarding evidence of other criminal activity and failure

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to limit the admissibility of criminal activity to evidence demonstrating the commission of an actual

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crime. People v. Phillips, 41 Cal. 3d 29 (1985). The jury at Phillips’ penalty re-trial returned a death

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sentence, but he had not yet been re-sentenced at the time of his federal filing.
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On March 12, 1992, the district court dismissed Phillips’ federal petition without prejudice,

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declining to interfere with the ongoing state criminal proceeding under the abstention doctrine and

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dismissing the petition for failure to exhaust state remedies. The Ninth Circuit reversed and remanded

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May 26, 1995, holding the extraordinary delay Phillips had already experienced in seeking review of

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his federal constitutional claims justified consideration of his guilt phase claims even though his death

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sentence was not final. Phillips v. Vasquez, 56 F.3d 1030, 1037-38 (9th Cir. 1995).

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Phillips’ amended federal habeas corpus petition, filed July 15, 1996, was denied evidentiary

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hearing, and was denied on the merits July 13, 1998. On appeal, the Ninth Circuit affirmed the denial

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of claims asserting bad faith destruction of evidence, Brady violation for failure to disclose reports,

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and factual innocence. Phillips v. Woodford, 267 F.3d 966, 986-988 (9th Cir., October 15, 2001).

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Claims alleging perjury by prosecution witness Sharon Colman (“Colman”) in denying she was

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promised or provided any benefit in return for her testimony, ineffective assistance of trial counsel for

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failing to investigate and/or present evidence supporting a “shoot-out” defense, and cumulative error,

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were remanded to the district court for an evidentiary hearing. The Ninth Circuit concluded that

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Phillips had “asserted a colorable claim that the combined prejudicial effect of his counsel’s

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ineffective assistance, and the State’s presentation of false testimony regarding the existence of a plea

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agreement with its chief witness, [which if proved] requires setting aside the findings that rendered

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him eligible for a sentence of death.” Id., at 970-986.

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While the appeal of Phillips’ guilt phase and death eligibility claims was pending before the

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Ninth Circuit, the California Supreme Court affirmed his second death sentence. People v. Phillips,

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22 Cal. 4th 226 (2000). Phillips’ state habeas petition asserting claims from his penalty re-trial was

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summarily denied September 27, 2000, and the United States Supreme Court denied certiorari April

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16, 2001. Steven L. Crawford was appointed to represent Phillips regarding his penalty phase claims

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September 19, 2001. Phillips filed his claims seeking federal habeas relief from his second death

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sentence on July 7, 2003.

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Upon remand of the guilt phase and death eligibility claims, Phillips indicated his desire to be

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represented on remand by Katherine L. Hart, who had repreesented him at his penalty re-trial, and

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filed a declaration waiving any ineffective assistance of counsel claims which might arise from her
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representation at the re-trial. A hearing was held to determine the validity of Phillips’ waiver, and

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since he was found to be fully competent, capable of entering an informed waiver, and aware of the

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nature and consequences of the waiver, the waiver was accepted. The evidentiary hearing on the

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remanded claims was held via depositions from January 6 through 23, 2003. Depositions were taken

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of trial counsel Paul Martin, prosecutor David Minier, surviving victim Ronald Rose, eye witness

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Colman, pathologist Dr. Thomas C. Nelson, Colman’s attorneys Tom Peterson and Cassandra Dunn,

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and Fresno County Detective Pete Santellano. Respondent (“the Warden”) attempted to take Phillips’

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deposition, but he refused to answer questions at the scheduled time. Phillips’ federal habeas petition

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was denied in part February 20, 2004, finding the remanded guilt phase and death eligibility claims

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without merit.
Phillips’ federal habeas petition was still pending resolution of his penalty phase claims.

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Phillips moved to dismiss his penalty phase claims July 2, 2004. No evidence was presented which

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undermined the prior finding that Phillips was competent, and the motion to dismiss the penalty phase

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claims was granted August 26, 2004.

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On appeal, the Ninth Circuit affirmed in part, reversed in part, and remanded with instructions

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to grant the writ as to the jury’s special circumstance finding, and accordingly, Phillips’ death

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sentence. Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012). The Ninth Circuit affirmed (1) the

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district court’s procedural rulings governing the evidentiary hearing (denying Phillips= transfer to the

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Madera County jail, vacating the live evidentiary hearing, and refusing filing of supplemental

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exhibits), and (2) the denial of the claim of ineffective assistance of trial counsel for allowing Phillips

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to proceed with an alibi defense, based on the intervening United States Supreme Court case of Cullen

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v. Pinholster, __ U.S. __, 131 S. Ct. 1388 (2011). The Ninth Circuit reversed the district court

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regarding the due process violation under Brady v. Maryland, 373 U.S. 83 (1963), from the

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prosecutor=s failure to reveal significant benefits given to key witness Colman in exchange for her

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testimony and under Napue v. Illinois, 360 U.S. 264 (1959), for failing to correct Colman’s false

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testimony. The Ninth Circuit found the undisclosed benefit to Colman was material to the issue of

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whether the murder was committed in the course of a robbery, as opposed to whether the robbery was

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committed in the course of (that is, to cover up) a murder, as her testimony was essential to the jury’s
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finding that robbery was the motive for the murder. Without Colman’s testimony, the Ninth Circuit

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concluded the jury likely would have determined the taking of the victims’ wallets was secondary to

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the murder, and not a basis for finding the special circumstance true under California law, thus

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vacating the special circumstance finding and the death sentence. The convictions for attempted

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murder, first-degree murder and robbery were upheld since the non-revealed benefits to Colman were

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not material to those convictions. The United States Supreme Court denied both Phillips’ and the

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Warden’s petitions for certiorari April 29, 2013. The Ninth Circuit issued the mandate June 6, 2013.

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The Court hereby

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1. grants in part Phillps’ application for writ of habeas corpus,

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2. vacates the special circumstance finding and death sentence imposed on Phillips, and

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3. orders that the State of California re-sentence Phillips to a penalty other than death and life

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without parole, unless proceedings to grant him a new trial on the special circumstances are

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initiated within 90 days from the date of this order.

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IT IS SO ORDERED.

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DATED:

June 11, 2013
/s/ Anthony W. Ishii
ANTHONY W. ISHII
United States District Judge

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