United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
matter is a petition for habeas corpus filed pursuant to 28
U.S.C. § 2254. (ECF Doc. 1.) Petitioner, a prisoner in
state custody at Hutchinson Correctional Facility in
Hutchinson, Kansas, proceeds pro se. Petitioner challenges
his conviction on several bases. The Court has screened his
petition under Rule 4 of the Rules Governing Habeas Corpus
Cases, foll. 28 U.S.C. § 2254 and finds that it is
subject to dismissal because it was filed out of time.
December 15, 2008, Petitioner was found guilty by a jury in
the District Court of Sedgwick County, Kansas, of one count
of first-degree felony murder, two counts of attempted
aggravated robbery, and criminal possession of a firearm.
State v. Phillips, No. 07-CR-3615. His convictions
stem from the shooting death of Miguel Moya, who Phillips
said rushed at him unarmed during a scuffle. Phillips shot
Moya after robbing two people at gunpoint at the same house.
State v. Phillips, 287 P.3d 245, 251 (Kan. 2012).
Petitioner was sentenced on January 28, 2009 to life in
prison with a mandatory minimum of 20 years, plus 81 months
and lifetime post-release supervision.
Kansas Supreme Court affirmed Phillips’ convictions and
sentence, other than vacating the lifetime post-release
supervision component. State v. Phillips, 287 P.3d 245,
261 (Kan. 2012). The court did not include an order of remand
in its opinion. The Clerk of the Supreme Court issued a
mandate on February 11, 2013, notifying the district court
that the Supreme Court had affirmed its judgment, except for
vacating the post-release supervision. See State v.
Phillips, 427 P.3d 961, 963 (Kan. 2019).
November 14, 2013, Petitioner filed a motion seeking habeas
relief in Kansas courts under K.S.A. 60-1507. In his motion,
Petitioner argued he was being unlawfully imprisoned because
he did not fire the kill shot, his defense counsel and the
State failed to investigate the shot that killed the victim,
his defense counsel failed to argue for a lesser included
offense and failed to reserve a theory of self-defense.
Petitioner’s 60-1507 motion was summarily denied by the
Sedgwick County District Court on July 9, 2015 as being
untimely. Petitioner appealed, and the Kansas Court of
Appeals agreed the motion for reconsideration was filed out
of time, as was the appeal. Phillips v. State, 376
P.3d 96 (Table), 2016 WL 3570487 at *3 (Kan. App. July 1,
2016), review denied (June 5, 2017).
March 6, 2015, Petitioner filed a motion for a new trial
under K.S.A. 22-3501 on the ground that a witness for the
prosecution, Aaron Hardgraves, had committed perjury. See
Phillips, 437 P.3d at 477. The motion was denied as
time-barred on August 28, 2015. Petitioner appealed the
denial, and the Kansas Supreme Court affirmed on March 29,
2019. Phillips, 437 P.3d at 964. The court found the
motion was time-barred because the judgment became final on
February 11, 2013, when the Kansas Supreme Court issued its
mandate in the direct appeal, and Phillips failed to file his
motion under K.S.A. 22-3501 within the two years provided by
that statute. Id..
also filed a motion to correct an illegal sentence in the
trial court. It was denied on May 10, 2017, after a hearing.
21, 2019, Petitioner filed the instant petition, asking the
Court for a new trial.
4 Review of Petition
of the Rules Governing § 2254 Cases requires the Court
to review a habeas petition upon filing and to dismiss it
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” Rules Governing §
2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254.
bases his petition here on four grounds. First, he argues the
jury should have been instructed as to self-defense. Second,
he claims ineffective assistance of counsel in that his
attorney failed to object to the removal of jury instructions
on the theory of self-defense and on lesser-included
offenses, after telling the jury Phillips was the shooter and
acted in self-defense. Third, Petitioner claims ineffective
assistance of counsel in that his attorney allegedly failed
to adequately investigate which gun actually fired the
killing shot and who fired the gun. Fourth, Phillips alleges
a witness for the prosecution, Aaron Hardgraves, lied on the