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Phillips v. Schnurr

United States District Court, D. Kansas

September 24, 2019

MICHAEL EUGENE PHILLIPS, Petitioner,
v.
DAN SCHNURR, Respondent.

          MEMORANDUM AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge.

         This 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.

         Background

         On 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.

         The Kansas Supreme Court affirmed Phillips’ convictions and sentence, other than vacating the lifetime post-release supervision component.[1] 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).

         On 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).

         On 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..

         Petitioner also filed a motion to correct an illegal sentence in the trial court. It was denied on May 10, 2017, after a hearing.

         On June 21, 2019, Petitioner filed the instant petition, asking the Court for a new trial.

         Rule 4 Review of Petition

         Rule 4 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.

         Petition

         Phillips 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 stand.

         Standard ...


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