Richard Louis Arnold Phillips v. Jeanne S. Woodford

267 F.3d 966 (9th Cir. 2001) RICHARD LOUIS ARNOLD PHILLIPS, PETITIONER-APPELLANT, v. JEANNE S. WOODFORD, RESPONDENT-APPELLEE. No. 98-99022 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 21, 2000--San Francisco, California Filed October 15, 2001 [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. 1 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…

Opinion by Judge REINHARDT; Dissent by Judge KLEINFELD

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,…

dissenting:

I concur in those portions of Part VTI of the majority opinion that reject Phillips’ *989 claims but otherwise dissent. The majority makes three major and independent errors: (1) it grants an evidentiary hearing on a claim not developed in state court, despite the Supreme Court’s reversal in Keeney v. Tamayo-Reyes 1 of a similar error our court had made; (2) it treats counsel’s defense of alibi, made at his client’s insistence and despite counsel’s recommendation against it, as ineffective assistance, despite our decision to the contrary in Bean v. Calderon; 2 and (3) it treats Phillips’ supposed ineffective assistance and perjury claims as cumulatively prejudicial based on a hypothetical trial that never occurred, instead of evaluating materiality of perjury and prejudice based on the trial that actually took place.

Phillips lured two men to a vacant area off a freeway exit ramp with a lie that his brother (who did not exist) would sell them some stolen insulation. He told them to “get as much cash together as [they] could.” Phillips and his girlfriend drove one car, the two men another. When the two cars stopped at a gas station on the way to the supposed…