Phillips v. Ornoski

• Citation: 673 F.3d 1168,2012 Daily Journal D.A.R. 3505,12 Cal. Daily Op. Serv. 3098
• Decision Date: 25 May 2012
• Docket Number: No. 04–99005.,04–99005.
• Parties: Richard Louis Arnold PHILLIPS, Petitioner–Appellant, v. Steven W. ORNOSKI, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

12 Cal. Daily Op. Serv. 3098
2012 Daily Journal D.A.R. 3505
673 F.3d 1168

Richard Louis Arnold PHILLIPS, Petitioner–Appellant,
v.
Steven W. ORNOSKI, Respondent–Appellee.

No. 04–99005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 25, 2009.Withdrawn from Submission July 1, 2010.Resubmitted Aug. 31, 2011.Filed March 16, 2012.As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc May 25, 2012.*

[673 F.3d 1171]

Richard Phillips, San Quentin, CA, appearing pro se; Katherine L. Hart, Fresno, CA, advisory counsel, for the petitioner-appellant.

Catherine Chatman, Supervising Deputy Attorney General, Sacramento, CA; Robert Todd Marshall, Assistant Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Senior District Judge, Presiding. D.C. No. CV–F–92–05167–REC.

Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and ANDREW J. KLEINFELD, Circuit Judges.

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

OPINION REINHARDT, Circuit Judge:

In this case we consider a capital habeas corpus petition filed prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA) and thus governed by pre-AEDPA law. Petitioner Richard Louis Arnold Phillips appeals the district court's denial of his habeas corpus petition on three grounds. First, he contends that the district court's procedural rulings improperly denied him a full evidentiary hearing. Second, he asserts that his trial counsel provided constitutionally ineffective assistance under the Sixth Amendment by allowing him to proceed with a manifestly unconvincing alibi defense without first investigating any alternative defenses. Third, he argues that the prosecution's failure to reveal that a key prosecution witness received significant benefits in exchange for her testimony after the witness falsely testified she had been promised no such benefits, coupled with the prosecutor's false representation to the jury that there was no agreement promising such benefits, violated his due process rights. We conclude that the district court did not err in its rulings governing the evidentiary hearing below, and we affirm its denial of Phillips's ineffective assistance of counsel claim.

With respect to Phillips's due process claim, we conclude, first, that, although the prosecution engaged in a deceptive ruse that this court has described as “a pernicious scheme without any redeeming features,” Hayes v. Brown, 399 F.3d 972, 981 (9th Cir.2005) (en banc) (quoting Willhoite v. Vasquez, 921 F.2d 247, 251 (9th Cir.1990) (Trott, J., concurring)), the evidence withheld from Phillips and misrepresented to the jury was not material to Phillips's convictions for attempted and first-degree murder, nor to his convictions for robbery, and we accordingly affirm these convictions. We hold, however, that the prosecution violated Phillips's due process rights by depriving him of, and willfully misleading the jury as to, critical evidence that was material to the special circumstance finding that the murder was committed during the course of a robbery (rather than vice versa). We therefore reverse and remand with instructions to grant the writ as to the jury's special circumstance finding, and, accordingly, Phillips's death sentence.

I. Factual Background A. The events of December 7, 1977

In September of 1977, Phillips met Ronald Rose and Bruce Bartulis, two partners

[673 F.3d 1172]

in a general contracting business who were building a pair of houses on property adjacent to Phillips's beachfront home in Newport Beach, California. The three men became acquainted when Phillips offered the contractors use of his electrical outlets to power their construction tools. Phillips and the contractors became friendly, and Phillips began to visit the construction site regularly to speak with them.

On the first or second day of November 1977, Phillips asked Rose and Bartulis if they wanted to invest in a cocaine deal with him. Under the deal as Phillips described it, Rose and Bartulis would contribute $25,000 to purchase cocaine that would be smuggled into the United States from Peru, and would receive a five-fold return on their investment. Rose and Bartulis agreed to the illegal investment and provided Phillips with $10,000 on November 2, 1977, with the $15,000 balance to be provided at a later date. Over subsequent weeks, Phillips inquired regarding the remaining balance multiple times. Approximately three to four weeks after the first payment, Rose provided Phillips with an additional $1,500. Rose explained to Phillips that he and Bartulis had intended to finance the transaction using funds derived from their contracting business, and that the business had encountered financial difficulties. Rose at one point suggested that Phillips either use only the $11,500 already provided to finance Rose and Bartulis's share of the cocaine deal or return the money, and Phillips agreed to use the funds he had already received.

During the course of these discussions it emerged that Rose and Bartulis were having difficulty obtaining insulation for various construction projects. In late November or early December 1977, Phillips informed Rose that he was capable of acquiring stolen insulation and offered to arrange a sale of such material. Rose and Bartulis accepted Phillips's offer. According to Rose's testimony at Phillips's trial, Phillips told Rose “that his brother was a part of this deal,” that the insulation was stored in a warehouse in Fresno, and that Rose and Bartulis would have to receive the insulation there.

Shortly thereafter, on December 7, Phillips informed Rose and Bartulis of the arrangements for the insulation transaction. Phillips told the two men to meet him that evening at a prearranged location in Fresno, a city in central California approximately four hours north of Newport Beach. From that location, they would drive to a second rendezvous point to meet Phillips's insulation source. That day, prior to leaving Newport Beach, Rose executed a notarized promissory note in the amount of $25,000 that he tendered to Phillips. Rose believed the note to be secured by property he owned, although he never signed the accompanying deed of trust. Of the $25,000 sum covered by the note, $13,500 constituted the balance on the cocaine deal and the remainder was intended as a down payment on a portion of the stolen insulation. Rose and Bartulis were unsure as to the total quantity of insulation they would ultimately purchase from Phillips's source, and Phillips therefore instructed them to bring as much additional cash to the meeting as possible.

After Rose gave Phillips the promissory note, they parted ways with plans to meet that evening in Fresno. Rose and Bartulis drove to Fresno in a two-door Ford Ranchero truck purchased by Rose for the construction firm and regularly used by Bartulis. In accordance with Phillips's suggestion that he bring extra cash, Rose carried with him to Fresno between $3,500 and $5,000 in $100 bills inside the left breast pocket of his jacket. Rose also brought a .44 magnum pistol.

Phillips flew to Sacramento, where his mother lived, intending to borrow his

[673 F.3d 1173]

mother's car and drive to Fresno. Fresno is approximately two and half hours south of Sacramento by car. That same day, Sharon Colman, Phillips's girlfriend of two months, flew directly to Fresno. Colman had previously dated and lived with Phillips's best friend since childhood, Richard Graybill. Colman, a prostitute, had arranged to be picked up at the Fresno airport by a client. Her flight, however, was delayed, and her client was not there when she landed. She therefore called Phillips at his mother's house in Sacramento and asked him to pick her up at the Fresno airport, which he did.

From the Fresno airport, Phillips and Colman drove to meet Rose and Bartulis at a gas station. The four proceeded from there in two separate vehicles to Chowchilla, a town approximately thirty-five miles north of Fresno along Highway 99. Phillips and Colman led the way; Bartulis and Rose followed. Along the way, both cars stopped at a second gas station so that Phillips could use the restroom. Returning to his car from the restroom, Phillips stopped to talk to Rose, from whom he requested a pack of matches. Both cars then continued north on Highway 99.

Sometime after midnight, both cars pulled off the highway in Chowchilla and parked in a vacant lot. The lot was in a deserted area, with no buildings nearby. The vehicles parked alongside one another, with Phillips's car to the left so that the passenger door of his car was in line with and a few feet from the driver-side door of the Ranchero. Phillips sat in the driver's seat of his car with Colman in the passenger seat; in the adjacent Ranchero, Bartulis sat in the driver's seat, with Rose in the passenger seat.

According to Colman, Phillips got out of his car and went to talk to Rose and Bartulis for a period of time through the driver-side window of the Ranchero before reentering his car through the passenger side, asking Colman to slide over. Colman testified that at some point approximately thirty to forty-five minutes after their arrival at the lot—after Rose and Bartulis had each finished some beers and smoked a marijuana cigarette—Phillips again exited his car and went to talk to Rose and Bartulis, leaning into the Ranchero's open driver-side window. Rose, however, stated that Phillips came and spoke to him and Bartulis through the driver-side window only once, and that the conversation occurred within five minutes, not thirty to forty-five minutes, of their arrival at the vacant lot.

This discrepancy as to timing aside, both Colman and Rose agree that, at some point after arriving at their destination, Phillips was leaning into the Ranchero's driver-side window talking to Rose...