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Phillips v. Davis

United States District Court, W.D. Texas, El Paso Division

September 6, 2019

KIMBERLY PHILLIPS, TDCJ No. 466923, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO, UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         BACKGROUND AND PROCEDURAL HISTORY

         Phillips and Corby Louis Francis were charged with attempted capital murder for the July 26, 1986, shooting of David Parham.[1] Phillips and Francis were tried separately.

         Parham 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.

         Officer 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:

         A The 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 toward us.

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 the time.
Q Is the individual that was driving that Buick Regal in the courtroom today?
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 Transmountain Road.
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 were ...

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