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Phillips v. Quitana

United States District Court, E.D. Kentucky, Central Division, Lexington

October 7, 2014

ELROY A. PHILLIPS, Petitioner,
FRANCISCO J. QUITANA, Warden, Respondent.


DANNY C. REEVES, District Judge.

Petitioner Elroy A. Phillips is an inmate confined at the Federal Medical Center in Lexington, Kentucky. Proceeding without counsel, Phillips has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his 1994 Florida state court conviction for attempted second-degree murder. [Record No. 1] Phillips has paid the $5.00 filing fee. [ Id .]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Bureau of Prisons , 419 F.Appx. 544, 545 (6th Cir. 2011). It must deny the relief sought "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). At this stage, the Court evaluates Phillips' petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus , 551 U.S. 89, 94 (2007); Burton v. Jones , 321 F.3d 569, 573 (6th Cir. 2003). The Court also accepts his factual allegations as true and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007).

For the reasons outlined below, the Court will deny the relief sought.


A. Phillips' State Conviction and Appeal

On May 6, 1994, Phillips was convicted by a jury of attempted second-degree murder. The case was heard in the Eleventh Judicial Circuit Court in Dade County, Florida. The State of Florida proceeded at trial under a theory that Phillips had a "duty to retreat" before using deadly force against an intruder. Phillips asked the trial court for a special jury instruction providing that he had "no duty to retreat." However, the trial court denied his request and he was ultimately found guilty. Phillips was originally sentenced to a 17-year prison term, but in 1997, a Florida appellate court reversed the conviction and remanded for an evidentiary hearing on his claim of ineffective assistance of counsel. Later that year, Phillips was resentenced to a 5-year prison term. He was released from state custody in 1998.

B. Phillips' Federal Conviction and Appeal

On December 20, 2002, following a fourteen-day trial, a federal jury in the Southern District of Florida found Phillips guilty of various narcotics and firearms offenses.[1] United States v. Phillips , 9:01-CR-8084-1-CR-Lenard ("Fla. Action I"). Based on his 1994 attempted second-degree murder conviction, the district court determined that Phillips was a career offender and applied the armed-career criminal enhancement under U.S.S.G. § 4B1.4(a) in calculating his guideline range. On August 21, 2003, the district court sentenced Phillips to a 360-month prison term. [Fla. Action I, Record No. 292] On appeal, the Eleventh Circuit affirmed the conviction but remanded for re-sentencing. United States v. Phillips , 177 F.Appx. 942, 943 (11th Cir. 2006) (" Phillips I "). It also directed the district court to merge Counts 14 and 17. Id. at 963.

Consistent with the Eleventh Circuit's mandate, the district court entered an Amended Judgment on July 31, 2006, in which it merged Counts 14 and 17 and sentenced Phillips to prison terms of 288-months as to Counts 1 and 9, 24-months for Count 11, and 180-months for Count 14, all to run concurrently. [Fla. Action I, Record No. 403] The government appealed Phillips' amended sentence and Phillips filed across-appeal.[2] The Eleventh Circuit affirmed the amended sentence, United States v. Phillips , 262 F.Appx. 183, (11th Cir. 2008) (" Phillips II ").[3] Thereafter, the United States Supreme Court denied Phillips' petition for writ of certiorari. Phillips v. United States , 128 S.Ct. 2456 (2008).

C. Phillips' Motion to Vacate His Federal Sentence

In November 2008, Phillips moved the district court to vacate his sentence under 28 U.S.C. § 2255. See Phillips v. United States , No. 08-cv-81283-JAL (S.D. Fla. 2008) ("Fla. Action II"); [Fla. Action II, Record No. 1]. From November 2008 through March 2014, protracted litigation ensued. In 2005, the Florida legislature enacted C.S.C.S.S.B. No. 436, titled "SELF DEFENSE-DEADLY FORCE." 2005 Fla. Sess. Law Serv. Ch. 2005-27 (West). The new law established, in relevant part, that:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily ...

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