Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phillips v. Ryan

United States District Court, D. Arizona

May 2, 2018

Terrance Ardell Phillips, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          TO THE HONORABLE DOUGLAS L. RAYES, U.S. DISTRICT JUDGE:

          REPORT AND RECOMMENDATION

          David K. Duncan United States Magistrate Judge

         Terrance Ardell Phillips filed a Petition for Writ of Habeas Corpus (“Petition”) in May 2017, challenging his conviction in Coconino County Superior Court for one count of first degree murder for the death of Michael Minix, and his sentence of natural life. His Petition alleges ineffective assistance of counsel during the plea bargaining process and vindictive prosecution. Respondents argue that his Petition is untimely and that he is not entitled to equitable tolling. As detailed below, the Court recommends that Phillips' Petition be denied and dismissed with prejudice.

         BACKGROUND

         A. Guilty Plea

         In April 2005, the Coconino County Superior Court conducted a change of plea hearing where Phillips entered a plea of guilty to first degree murder. (Doc. 11, Exs. C, D) During the hearing, the Court discussed all of the various rights Phillips was giving up and Phillips indicated he understood. (Doc. 11, Ex. GG at 5-6) The Court also explained that under the plea agreement, the Court would determine any aggravating and mitigating factors. (Doc. 11, Ex. GG at 6-9) The Court accepted the plea after finding that Phillips “knowingly, intelligently, and voluntarily entered a plea of guilty to the charge in the plea agreement, ” and that there was a sufficient factual basis. (Doc. 11, Ex. GG at 19)

         Subsequently, the Court held a four day aggravation/mitigation hearing. (Doc. 11, Ex. F) Phillips, through counsel, called ten witnesses to testify and presented oral argument to the Court. Phillips also presented statements to the Court; the State called witnesses and presented oral argument as well. (Doc. 11, Exs. F, II) In November 2005, the Court found several aggravating and mitigating factors and sentenced Phillips to natural life. (Doc 11, Ex. G)

         B. First Rule 32 Petition

         Phillips, through counsel, timely filed a Petition for Post-Conviction Relief (“First PCR”) in September 2006, in Coconino County Superior Court. (Doc. 11, Ex. H) The First PCR raised three claims of ineffective assistance of counsel relating to his representation during the aggravation/mitigation hearing. Phillips argued that he received ineffective assistance of trial counsel because they failed to present evidence relating to his mental illness, expert testimony was presented telephonically not live in court, and they did not obtain a defense expert to rebut the State's crime scene reconstructionist. (Doc. 11, Exs. H, J) After review, the Superior Court summarily dismissed his First PCR after finding that Phillips had not met his burden under Strickland v. Washington, 466 U.S. 668 (1984), because he had “merely [stated] conclusions, assertions, or speculation which fails to present a sufficient issue of material fact to warrant an evidentiary hearing.” (Doc. 11, Ex. J, at 1)

         Phillips timely petitioned the Arizona Court of Appeals for review alleging that the Superior Court abused its discretion in denying his First PCR. (Doc. 11, Ex. K) At the conclusion of briefing, the Court of Appeals ordered that review be denied. (Doc. 11, Exs. L, M) Phillips' petition to the Arizona Supreme Court for review was denied in April 2008. (Doc. 11, Ex. N)

         C. Second Rule 32 Petition

         The record indicates Phillips did not file anything between April 2008 and January 2014, when he filed a pro se Petition for Post-Conviction Relief (“Second PCR”) in Coconino County Superior Court alleging that he had received ineffective assistance of counsel and that the State had lacked evidence to support his first degree murder conviction. (Doc. 11, Exs. P, JJ) In response, the State argued that Arizona Rules of Criminal Procedure 32.2(a) and (b) preclude Phillips from raising the claims in his Second PCR, because he had not raised the claims in his First PCR. (Doc. 11, Ex. R) Phillips' reply argued that the State's response was untimely and that the untimely response violated his constitutional right to Due Process. (Doc. 11, Ex. S) After thorough analysis, the Superior Court summarily denied his Second PCR after concluding that Phillips' Second PCR “failed to raise a colorable claim, ” and that his claims “failed to present a material issue of law which would entitle [him] to relief.” (Doc. 11, Ex. T, at 1)

         Phillips then petitioned the Arizona Court of Appeals for review alleging that the Superior Court abused its discretion in denying his Second PCR. (Doc. 11, Ex. U) The Court of Appeals granted review but denied relief. (Doc. 11, Ex. V) Philips filed a motion for reconsideration which the Court of Appeals denied. (Doc. 11, Ex. W) Phillips then petitioned the Arizona Supreme Court which denied review in May 2016. (Doc. 11, Ex. X)

         D. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.