United States District Court, W.D. Texas, El Paso Division
KIMBERLY PHILLIPS, TDCJ No. 466923, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
MONTALVO, UNITED STATES DISTRICT JUDGE.
Kimberly Phillips, a state prisoner confined at the Clements
Unit in Amarillo, Texas, challenges Respondent Lori
Davis' custody of him through a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Before the
court are Phillips' "Petition for a Writ of Habeas
Corpus by a Person in State Custody" (ECF No. 1), filed
September 27, 2018; Phillips' "Memorandum of Law in
Support of 28 U.S.C. § 2254 Application for Writ of
Habeas Corpus and request for Evidentiary Hearing" (ECF
No. 2), filed September 27, 2018; Davis' "Answer
with Brief in Support" (ECF No. 26), filed January 7,
2019; and Phillips' "Reply to Respondent's
Answer with Brief in Support" (ECF No. 31), filed
February 26, 2019. After considering the Petition,
Memorandum, Response, Reply, and the applicable law, the
Court will deny the Petition. The Court will additionally
deny Phillips a certificate of appealability.
AND PROCEDURAL HISTORY
and Corby Louis Francis were charged with attempted capital
murder for the July 26, 1986, shooting of David
Parham. Phillips and Francis were tried
testified at Phillips' trial that, while he was driving
along Transmountain Road, in El Paso, Texas, he stopped to
help two men, later identified as Phillips and Francis, with
an orange Buick Regal pulled over to the side of the road.
Parham claimed that after he stopped, the two men robbed him.
Parham further claimed that Phillips then shot him twice and
Francis shot him a third time. Parham also described how
Phillips and Francis pushed him down an embankment, shooting
at him again as he slid away.
Robert Coleman testified at Phillips' trial that early on
the morning of July 26, 1986, he was called by Officer
Martinez on the radio to check on two suspicious males and an
orange Buick Regal parked on outside a Circle K store.
Officer Coleman said he observed the vehicle pass him while
he was driving toward the Circle K:
orange vehicle was going at a slow rate of speed, there was a
vehicle to it's [sic] right, directly behind it which
illuminated the interior of the car as they were coming
Q Did the car have tinted windows?
A No. it did not.
Q Were you able to recognize the driver of that vehicle?
A Yes, I was. My window of the patrol car was rolled down at
Q Is the individual that was driving that Buick Regal in the
A Yes, he is.
Q Where is he sitting?
A He's sitting to ay right in the chair with a blue shirt
on with a beard and hair in a ponytail, right there.
MR. SHANNON: Now, Officer Coleman, what is - why were you
able to identify - let me ask you this. Why were you able to
now identify him?
A Well, as the Regal came closer together, I was looking
directly at the car first and I noticed the driver was the
only person in the vehicle, at that time he passed us up I
made eye contact with the driver of the vehicle and noted, I
saw his face.
Q Prior to this time, was there any description put out of
this driver in any spot broadcast?
A Well, Officer Martinez gave a description of two males, two
white males with the vehicle, to check them out, however
there was no spot broadcast was given out, just the one
Officer Martinez gave us.
Q As the vehicles passed each other, what did you do?
A At that time, after looking at the subject, I proceeded
northbound approximately 30 feet and made a U-turn to go
check the vehicle. As I was making the U-turn, the vehicle
made a sharp right turn on to a residential street and
proceeded westbound on that street.
Q Did he get away from you?
A Yea he did.
Q Now, when he eluded you, what did you do?
A Right after he eluded us, we heard a spot broadcast go over
the police radio about a crime that had occurred on
Q What reaction did you have to that spot broadcast?
A The spot broadcast gave a description of the vehicle that
was taken from the scene of the crime and it clicked to my
partner and I that that was the vehicle that we had seen and