Phillips v. Woodford

Decision Date21 March 2000
Docket NumberPETITIONER-APPELLANT,RESPONDENT-APPELLEE,No. 98-99022,98-99022
Citation267 F.3d 966
Parties(9th Cir. 2001) RICHARD LOUIS ARNOLD PHILLIPS,, v. JEANNE S. WOODFORD,
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Counsel Richard Louis Arnold Phillips, pro se, San Quentin State Prison, San Quentin California, and Donald J. Horvath, Advisory Counsel, Coarsegold, California, for the petitioner-appellant.

Robert Todd Marshall, Deputy Attorney General, Sacramento, California, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, District Judge, Presiding D.C. No. CV-F-92-5167-REC

Before: Betty B. Fletcher, Stephen Reinhardt, and Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Kleinfeld

Reinhardt, Circuit Judge.

California prisoner Richard Louis Arnold Phillips appeals the district court's denial, without an evidentiary hearing, of his 28 U.S.C. §§ 2254 habeas corpus petition. We conclude that Phillips has asserted a colorable claim that the combined prejudicial effect of his counsel's ineffective assistance, and the State's presentation of false testimony regarding the existence of a plea agreement with its chief witness, requires setting aside the findings that rendered him eligible for a sentence of death. Accordingly, Phillips has established his entitlement to an evidentiary hearing on those two claims, and we reverse in part and remand with instructions that the district court conduct such a hearing. We reject Phillips's remaining claims for relief.

I. Background
A. Procedural History

Phillips was convicted on January 31, 1980 of the first degree murder of Bruce Bartulis, the attempted murder of Ronald Rose, two counts of robbery, and the personal use of a firearm in the commission of the crimes. The jury also found the special circumstance of murder during the commission of a robbery to be true. On February 1, 1980, following the presentation of the penalty phase, the jurors returned a verdict of death. The California Supreme Court affirmed Phillips's conviction on direct appeal, but reversed his death sentence. People v. Phillips, 711 P.2d 423 (Cal. 1985). After a second penalty-phase trial, some twelve years after the initial verdict, Phillips was once again sentenced to death on March 13, 1992.

In the interim, from 1987 through 1990, Phillips filed four petitions seeking collateral relief in the Madera County Superior Court. Two of those petitions were denied following evidentiary hearings, and the other two were denied without hearings. Phillips presented all four petitions to the Fifth District Court of Appeal, which denied relief. The California Supreme Court denied review of all four petitions.

On March 4, 1992, prior to being resentenced, Phillips filed a federal habeas corpus petition, raising only guilt-phase claims. The district court dismissed the petition without prejudice on two grounds: that entertaining the petition would interfere with ongoing state criminal proceedings with respect to the sentence, see Younger v. Harris, 401 U.S. 37 (1971), and that Phillips had not exhausted his state remedies. On May 26, 1995, some fifteen years after his conviction, we reversed the district court's dismissal, holding that the extraordinary delay that Phillips had already experienced in seeking review of his constitutional claims justified consideration of his guilt-phase claims even though his death sentence was still under review in the California courts -and would be for another five years. Phillips v. Vasquez , 56 F.3d 1030, 1037-38 (9th Cir. 1995).

Phillips thereafter filed an amended petition on July 15, 1996, alleging that his trial counsel rendered ineffective assistance, that the prosecution made knowing use of perjured testimony and failed to disclose evidence favorable to the defense, that the State destroyed evidence in bad faith, that he is factually innocent of capital murder, and that cumulative error prejudiced his trial. The State moved for summary dismissal, but its motion was denied on January 14, 1997. Phillips then filed two motions for an evidentiary hearing. The first was denied without prejudice on October 17, 1997, and the second was denied on July 13, 1998, along with Phillips's habeas petition. This appeal followed.1

B. Facts

A full statement of the facts developed at trial can be found in the original decision of the California Supreme Court affirming Phillips's conviction on direct appeal. People v. Phillips, 711 P.2d 423, 427-30 (Cal. 1985). The following facts, taken from that opinion, are relevant for purposes of this habeas appeal:

Phillips became involved in a large cocaine deal with Ronald Rose and Bruce Bartulis. Both Rose and Bartulis agreed to invest $25,000 each in order to purchase a significant amount of cocaine. Unable to produce the agreed upon amount of money, Rose ultimately gave Phillips a promissory note for $25,000. The amount apparently included funds to purchase housing insulation in addition to cocaine.

A few months later, Phillips informed Rose and Bartulis that he knew where to obtain stolen insulation. Phillips arranged to meet Rose at a gas station in Fresno, California, in order to exchange cash for the stolen insulation. Rose and Bartulis drove to the station in Rose's 1977 Ranchero. Rose had an unloaded .44 magnum pistol in the vehicle, with some ammunition behind one of the seats. Phillips arrived at the station with his girlfriend, Sharon Colman. After meeting up with Rose and Bartulis, the four proceeded in two cars (Phillips and Colman in a Toyota; Rose and Bartulis in the Ranchero) to a different location--a vacant lot off of the freeway. Before arriving at the lot, they all stopped at another gas station, where Phillips used the restroom.

Among other things, Colman testified to the following: After leaving the restroom, Phillips walked over to the Ranchero and borrowed matches, although during the time they had been living together (the past two months approximately), Phillips did not smoke. Once the four arrived at the vacant lot, Phillips got out of the Toyota and spoke for some time to Rose and Bartulis through the Ranchero driver-side window.

At some point, she heard shots fired and as a result, she looked up and saw Phillips holding a gun. Phillips took Rose's and Bartulis's wallets which contained a total of $120 to $150 and brought them back to the car. He then set the Ranchero on fire using gasoline he obtained from the trunk of the Toyota. Rose, who was still alive, jumped out of the burning Ranchero. Upon realizing that Rose was still alive, Phillips drove the Toyota into Rose and hit him, also cracking the Toyota's windshield. Upon first finding the wallets and again while driving away from the shootings, Phillips lamented not finding more money than he did.

Bartulis died at the scene, but Rose survived despite five gunshot wounds and severe burns. Deputies later found large amounts of burned currency in $100 denominations at the crime locale. Approximately one week later, after warrants were issued for their arrest, Phillips and Colman went to Salt Lake City where Colman had relatives. Phillips was apprehended a few months later by the FBI.

At trial, in addition to Colman's testimony, Rose testified that he had limited memory of the shooting and never actually saw who fired the shots. He recalled that just prior to the gunshots Phillips was alone at the driver's side window, that the shots came from the direction where Phillips was standing, and that Rose heard a male voice close to him while he was being searched.

Phillips's counsel presented an alibi defense. Phillips testified at trial that he was being framed and that he had in fact been at a meeting in Sacramento and then at a disco during the time the crime was committed. Phillips claimed that he lent the Toyota to the "coordinator" of the cocaine purchase, Richard Graybill, who returned it to him damaged, and that he fled to Salt Lake City pursuant to an agreement with Graybill. Defense counsel presented no corroboration for Phillips's alibi, claiming that Phillips feared reprisal if he divulged the identity of the people he had met with in Sacramento.

Phillips now concedes, as he did at his second penaltyphase trial, that his trial testimony was not only deeply unconvincing, but actually false, and that he was in fact present at the crime scene. He alleges that Bartulis was killed in a shootout. According to Phillips's declaration, he fired his weapon at Rose and Bartulis only after "he heard the`click' of a hammer going back on a revolver"; he also declares that he "found a large revolver in Rose's hand after the shooting." Phillips contends that Bartulis was killed not by his bullet but by Rose's, and that he will be able to establish as much if given the opportunity to develop facts at an evidentiary hearing. In fact, Phillips argues that evidence currently available -and, more saliently, available to counsel at the time of trial -supports his contention that Bartulis was killed during a shoot-out. He further alleges that the key witness against him, Sharon Colman, and Madera County District Attorney David Minier both lied under oath about the existence and nature of a plea agreement under which Colman would receive lenient treatment in exchange for her testimony that Phillips not only killed Bartulis but that he did so in the course of a robbery, thus rendering Phillips eligible for the imposition of the death penalty. We discuss Phillips's additional factual allegations, as they relate to his claims for relief, below.

II. Standard for Granting Evidentiary Hearing

On this appeal, Phillips asks that we direct the district court to afford him an evidentiary hearing...

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