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Phillips v. Smith

United States District Court, E.D. Kentucky, Southern Division, London

March 26, 2018

JOHNNY PHILLIPS, Petitioner,
v.
AARON SMITH, Warden Respondent.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         This matter is before the Court on the plaintiff's motion (DE 92) to amend an order entered by this Court on May 25, 2017, which denied the plaintiff's motion for a writ of habeas corpus under 28 U.S.C. § 2254 on all but one issue.

         The facts and procedural history of this matter have been set forth now in multiple opinions, including an opinion by the Kentucky Supreme Court, Phillips v. Commonwealth, No. 2009-SC-000633-MR, 2010 WL 2471669, at *6 (Ky. June 17, 2010). Likewise, Magistrate Judge Edward B. Atkins and former U.S. District Judge Amul Thapar have set forth the relevant facts and history in opinions in the record of this matter (DE 85, Report and Recommendation; DE 89, May 25, 2017 Order.)

         In brief, the plaintiff Johnny Phillips was found guilty in state court of wanton murder in the death of his friend, Phillip Glodo. He was sentenced to 30 years imprisonment. Magistrate Judge Atkins and Judge Thapar interpreted his habeas petition to assert three constitutional errors in the state court proceedings: first, that the trial court violated his constitutional rights by instructing the jury on wanton murder (with a related argument that there was insufficient evidence to convict him of this charge); second, that his trial counsel was ineffective for failing to seek a directed verdict on the wanton-murder charge, for failing to object to the jury being instructed on wanton murder, for failing to offer proof at trial to rebut the wanton-murder charge, for failing to request an occupied-vehicle instruction, and for failing to call two experts; and third, that the government failed to disclose exculpatory evidence to him in violation of Brady v. Maryland, 373 U.S. 83 (1963). (DE 85, Recommendation at 3; DE 89, Order.)

         Judge Atkins entered a recommendation that Phillips' petition be denied as to all claims. In his May 25, 2017 order, Judge Thapar accepted that recommendation with regard to all but the Brady claim. As to that claim, Phillips argued that the government had failed to provide him post-mortem x-rays of Glodo's skull. There is no dispute that the government denied the x-rays existed and Phillips eventually obtained one x-ray through an open-records request.

         Magistrate Judge Atkins ruled that Phillips failed to show any prejudice from the failure to disclose the x-ray. Phillips had argued that the x-ray would show that Glodo was not shot in the back of the head but rather from the side of the head as a result of a struggle for the gun. (DE 85, Recommendation at 20.) Phillips asserts that the x-ray helps prove that he shot Glodo in self-defense. Judge Thapar ruled that, in order to determine whether the x-ray is “material” as necessary to excuse Phillips' failure to raise the Brady issue on direct appeal in state court, an evidentiary hearing is necessary. (DE 89, Order at 18.) After Judge Thapar was confirmed as a judge on the Sixth Circuit Court of Appeals, the matter was reassigned to the undersigned. A hearing on the materiality of the x-ray is scheduled to take place on April 30, 2018.

         With this motion, Phillips argues that Judge Thapar's opinion should be amended. He first argues that Judge Thapar incorrectly found that Phillips had not rebutted with clear and convincing evidence the Kentucky Supreme Court's factual findings. The only finding he specifically objects to is the finding that, prior to shooting Glodo, Phillips “prodded” Glodo with a loaded shotgun in an effort to push Glodo away from him. Phillips argues that this finding was based on evidence that had been excluded by the trial court. As Judge Thapar explained, however, this finding was based on Phillips' own statement that he used the shotgun “to push [Glodo] away from me and it went off….” Phillips, 2010 WL 2471669, at *3.

         Next, Phillips argues that Judge Thapar erroneously determined that his sufficiency-of-the-evidence claim was based upon state law. (DE 92, Mot. at 8.) This is incorrect. Judge Thapar explained that the Kentucky Supreme Court's decision that there was sufficient evidence to support the conviction was based upon state law. (DE 89, Order at 9.) He then correctly applied federal law in determining whether Phillips' claim merited habeas relief in this Court.

         Next Phillips appears to ask the Court to make additional factual findings regarding Judge Thapar's determination that Phillips did not exhaust in state court his claim that the trial court violated his due process rights by instructing the jury on wanton murder. (DE 92, Mot. at 8.) No additional findings are necessary to support Judge Thapar's conclusion that Phillips did not raise this claim in the state court proceedings. In fact, as Judge Thapar pointed out, Phillips conceded in his petition that he did not exhaust this claim. Further, Judge Thapar determined that this claim lacked merit. No additional findings are necessary to support that conclusion.

         Phillips argues that Judge Thapar incorrectly determined that it was proper to instruct the jury on wanton murder even though the word “wanton” did not appear in the indictment. Judge Thapar correctly explained that, by charging murder in violation of KRS § 507.020, the indictment provided Phillips sufficient notice that he was being charged with murder in the manners defined by the statute, including wanton murder. Phillips also asks for additional findings on this conclusion. (DE 92, Mot. at 11.) No additional findings are necessary.

         Phillips next appears to ask the Court to make additional findings regarding his claim that there was insufficient evidence to support his conviction. (DE 92, Mot. at 15.) Phillips should understand that this Court cannot undertake a complete review of the evidence presented at the trial. “[I]t is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Parker v. Matthews, 567 U.S. 37, 43 (2012). Further, in reviewing the sufficiency of the evidence, this Court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (citation omitted). This Court is limited to reviewing the Kentucky Supreme Court's sufficiency ruling to determine if it was unreasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

         Under federal law, the relevant question when sufficiency of the evidence is raised is whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. On federal habeas review, even if this Court were to conclude that “a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, . . . [the Court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable.” Id. (citing 28 U.S.C. § 2254(d)(2)).

         In his most recent motion, Phillips argues that nothing in the trial record “refutes” that he believed he needed to act in self-defense. The Kentucky Supreme Court determined that it was “uncontroverted that Glodo was shot in the back of the head. While not determinative, a shot from behind, for obvious reasons, raises a jury question concerning whether Phillips, in fact, was acting in self-defense.” Phillips, 2010 WL 2471669, at * 4. Further, as the Supreme Court pointed out, “a defendant relying upon self-defense bears the risk that the jury will not be persuaded of his version of the facts.” Id. at 5 (quoting West v. Commonwealth, 780 S.W.2d 600, 601 (Ky. 1989). The Kentucky Supreme Court's determination that a rational juror could have determined that Phillips did not act in self-defense was not unreasonable.

         Phillips next asks the Court to make additional findings regarding Judge Thapar's rejection of his claims for ineffective assistance of counsel relating to his argument that he was convicted of an uncharged offense - wanton murder. Phillips does not specify what additional findings he requests. (DE 92, Mot. at 17.) The Court finds that none ...


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