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Phillips v. Vannoy

United States District Court, E.D. Louisiana

April 1, 2019

MELVIN PHILLIPS
v.
DARREL VANNOY, WARDEN

         SECTION “J” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE

         The petitioner, Melvin Phillips (“Phillips”), filed a petition for federal habeas corpus relief under 28 U.S.C. § 2254 that was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. On August 2, 2018, the undersigned Magistrate Judge issued a Report and Recommendation recommending dismissal of Phillips's petition for failure to exhaust state court remedies as to his challenge to a jury charge used in his state court criminal trial unless Phillips dismissed, or amended the petition to exclude, the unexhausted claim.[1] After review of Phillips's objections and motion to amend, the District Judge granted the amendment to exclude the unexhausted claim and referred the matter back to the undersigned magistrate judge for issuance of a report and recommendation on the remaining claims.[2]

         Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[3]

         I. Factual and Procedural Background

         On October 31, 2011, Phillips was charged in Jefferson Parish by Bill of Information, as amended, with one count of armed robbery and one count of attempted armed robbery.[4] The re cord reflects that, at approximately 1:00 a.m. on September 3, 2011, Carlos Sosa was working at the Shell gas station on West Esplanade and Williams Boulevard when a man, later identified as Phillips, walked in and demanded money.[5] Upon demanding the money, Phillips raised his t-shirt and displayed the handle of a gun secured in his belt. Phillips kept his hand on the gun handle for the duration of the robbery.

         Sosa complied with the Phillip's demands and gave him the money from the register. Unsatisfied, Phillips ordered Sosa to open the store's safe and lift the drawer out of the register to disclose any additional money. Sosa told Phillips that he could not open the safe and that there was no more money underneath the register drawer. Phillips took the money he had been given and before leaving, instructed Sosa to stay inside. When Phillips left, Sosa called the police and explained that Phillips was wearing an army hat, fatigue jacket, white t-shirt, shorts, and tennis shoes. The robbery was captured on the store's surveillance cameras. A few days later, Sosa identified Phillips from a photographic lineup.

         That same night, at approximately 4:45 a.m., Kenneth Klein was working at the Exxon station located at the corner of David Drive and Airline Highway when a man, later identified as Phillips, wearing a white t-shirt and camouflage pants entered the store, took out his wallet, and asked for a pack of cigarettes. When Klein retrieved the cigarettes, Phillips said, “I'll take the Kools and everything in the register, or I'll blow your f***ing head off.” Phillips lifted his shirt to reveal a gun tucked in his waistband, and he placed his hand on the gun. Klein could see the handle grip, the trigger guard, the hammer, and a portion of the barrel.

         Klein complied with Phillips's demand and placed the money from the cash register on the counter. Phillips demanded the money that was under the drawer of the register, but Klein said there was none. Phillips then stated, “Don't look at me or I'll blow your f***ing head off.” Klein was scared and concerned that Phillips would follow through with his threats. When Phillips took his hand off the gun to reach for the money, Klein took out his own pistol and shot Phillips twice. After the first shot, Klein thought Phillips was trying to reach for the gun at his waist, so he fired the second shot.

         Phillips ran from the store and Klein followed him outside to get his license plate number. When he got outside, Klein thought Phillips was getting back out of his car to start shooting at him. Klein then fired one more shot into the car door in an attempt to keep Phillips in the car, and to mark the car so it could be identified. Phillips drove away, and Klein called the police.

         Upon their arrival, the police discovered that Phillips left his wallet, including his social security card, driver's license, and other identifying items, on the counter of Klein's store. After being shot, Phillips soon was involved in a one-car accident and was taken to the hospital for treatment of his gunshot wounds. The police retrieved from the car a BB handgun, Phillips's Visa credit card, cell phone, a hat, and camouflage shorts.

         Phillips was tried before a jury on June 26 and 27, 2012, and was found guilty as charged.[6]On July 19, 2012, the Trial Court denied Phillips's motion for a new trial and, after waiver of legal delays, sentenced him to consecutive prison terms of 50 years for armed robbery and 24 years for attempted armed robbery.[7]

         The State also filed a multiple bill charging Phillips as a second felony offender.[8]Following a hearing on the multiple bill that same day, the Trial Court vacated the original sentences and resentenced Phillips as a second offender to serve 75 years in prison for armed robbery and 50 years in prison for attempted armed robbery to run concurrently and without benefit of parole, probation, or suspension of sentence.[9]

         On direct appeal to the Louisiana Fifth Circuit Court of Appeal, Phillips's appointed counsel asserted three errors:[10] (1) the Trial Court erred by reading a jury instruction which stated that a toy gun could be a dangerous weapon in the armed robbery of Sosa, and the evidence was only sufficient to establish a first degree robbery of Sosa; (2) the Trial Court erred by imposing an unconstitutionally excessive sentence; and (3) trial counsel erred by failing to file a motion to reconsider the sentence if that failure precludes review of the excessive sentence. In his pro se supplemental brief, Phillips asserted the following errors:[11] (1) the Trial Court erred in adjudicating him as a second offender when the State failed to meet its burden of proof on the multiple bill; and (2) trial counsel failed to object or move to quash the multiple bill.

         On December 12, 2013, the Louisiana Fifth Circuit affirmed Phillips's convictions finding no merit in his first counseled claim.[12] However, based on his claim of ineffective assistance of counsel for failing to challenge the multiple bill proceedings, and finding concerns with the evidence relied on by the State, the Court vacated the multiple offender adjudication and sentences without prejudice to the State's ability to retry Phillips as a multiple offender on remand. As a result, the Court went on to find no need to address the excessive sentence and related ineffective assistance claim. On February 5, 2014, the Court also refused Phillips's pro se request for rehearing based on further argument related to the constitutionality of the predicate offense in the multiple bill.[13]

         On September 26, 2014, the Louisiana Supreme Court summarily denied Phillips's related writ application in which he asserted that the Louisiana Fifth Circuit erred in finding the evidence sufficient to support the armed robbery conviction.[14]

         Following the remand by the Louisiana Fifth Circuit, on February 3, 2015, the Trial Court resentenced Phillips to serve consecutive terms of 50 years for armed robbery and 24 years for attempted armed robbery.[15] On March 11, 2015, Phillips pleaded guilty to the State's multiple bill.[16] The Trial Court vacated the sentences and resentenced him as a second offender to consecutive sentences of 75 years for armed robbery and 50 years for attempted armed robbery to be without benefit of parole, probation, or suspension of sentence.

         Phillips sought no review of the new multiple offender adjudication or sentence. His convictions and sentences became final thirty (30) days later, on April 10, 2015, when he did not move for leave to appeal or seek reconsideration of the new sentences. La. Code Crim. P. art. 914;[17] Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (“[A] conviction becomes final when the time for seeking further direct review in the state court expires.”) (quoting Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)); Burton v. Stewart, 549 U.S. 147, 156 (2007) (in a criminal case, judgment includes conviction and sentence, therefore the AEDPA “limitations period did not begin until both his conviction and sentence ‘became final by the conclusion of direct review or the expiration of the time for seeking such review, '” citing 28 U.S.C. § 2244(d)(1)(A)); Scott v. Hubert, 635 F.3d 659, 665 (5th Cir. 2011) (same, citing Burton, 549 U.S. at 156).

         Eleven months later, on March 8, 2016, Phillips signed and submitted an application for post-conviction relief to the Trial Court in which he asserted that he received ineffective assistance of counsel when counsel advised him to reject a plea offer of a 20-year sentence and failed to argue the only legitimate defense.[18] On May 13, 2016, after receiving additional briefing, the Trial Court denied relief finding no merit to the claims under the standards in Strickland v. Washington, 466 U.S. 668 (1984) and related case law.[19]

         On July 13, 2016, the Louisiana Fifth Circuit denied Phillips's related writ application finding no error in the Trial Court's ruling.[20] On December 5, 2017, the Louisiana Supreme Court denied Phillips's subsequent writ application holding that he failed to show ineffective assistance of counsel under Strickland.[21]

         II. Federal Petition

         On December 18, 2017, the clerk of this Court filed Phillips's federal petition for habeas corpus relief in which he asserts the following grounds for relief:[22] (1) insufficient evidence to convict and improper jury instruction; and (2) ineffective assistance of counsel when his trial attorney advised him to reject a plea offer of a 20-year sentence and failed to argue the only legitimate defense to the jury. Phillips has since amended his petition to exclude the unexhausted claim of an improper jury instruction. Exhaustion was the only procedural defense asserted in the State's response in opposition to Phillips's federal habeas petition.[23]

         III. General Standards of Review

          The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [24] applies to this petition, which is deemed filed in this Court no later than December 18, 2017.[25] The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

         The State concedes, and the record proves, that Phillips's federal petition was timely filed. The Court has already addressed Phillips's failure to exhaust state court review and no other procedural defenses are reflected in the record. The Court will review Phillips's remaining claims.

         IV. Standards of a Merits Review

         The AEDPA standard of review is governed by § 2254(d) and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions of fact, questions of law, and mixed questions of fact and law.

         A state court's determinations of questions of fact are presumed correct and the Court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2) (2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear and convincing evidence” burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1).

         A state court's determination of questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), as amended by the AEDPA. The standard provides that deference be given to the state court's decision unless the decision is “contrary to or involves an unreasonable application of clearly established federal law” as determined by the United States Supreme Court. Hill, 210 F.3d at 485. The “critical point” in determining the Supreme Court rule to be applied “is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” White v. Woodall, 572 U.S. 415, 427 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not ‘clearly established at the time of the state-court decision.'” White, 572 U.S. at 426 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

         A state court's decision can be “contrary to” federal law if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. A state court's decision can involve an “unreasonable application” of federal law if it correctly identifies the governing rule but then applies it unreasonably to the facts. White, 572 U.S. at 426-27; Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.

         The Supreme Court in Williams did not specifically define “unreasonable” in the context of decisions involving unreasonable applications of federal law. See Williams, 529 U.S. at 410. The Court, however, noted that an unreasonable application of federal law is different from an incorrect application of federal law. Id. “‘[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.'” Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002).

         Thus, under the “unreasonable application” determination, the Court need not determine whether the state court's reasoning is sound, rather “the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006). In addition, review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         V. Analysis

         A. Sufficiency of the Evidence (Claim No. 1)

         Phillips alleges that the state failed to prove that his B.B. gun was a dangerous weapon to prove the armed robbery. Phillips's counsel asserted this claim on direct appeal. Citing Jacksonv. Virginia, 443 U.S. 307 (1979), and related state case law, the Louisiana Fifth Circuit denied relief finding that, under Louisiana law, the B.B. gun satisfied the dangerous weapon element of the armed robbery committed against Sosa.[26] This was the last reasoned opinion on the issue. See Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1192 (2018) (“We hold that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale . . . then presume that the unexplained decision adopted the same reasoning.”); see also, Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) ...


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