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Phillips v. Warden, Noble Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

December 13, 2019

MALCOLM PHILLIPS, Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

          JUDGE SARAH D. MORRISON

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner challenges his January 2014 convictions after a jury trial in the Franklin County Court of Common Pleas on possession of drugs with a firearm specification and having a weapon while under disability. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

By indictment filed July 20, 2012, plaintiff-appellee, the State of Ohio, charged appellant with one count of possession of cocaine, in violation of R.C. 2925.11, a first-degree felony with an accompanying firearm specification, and one count of having a weapon while under disability, in violation of R.C. 2923.13, a felony of the third degree.
At trial, the state presented evidence that a trash pull conducted on January 27, 2012 at appellant's residence produced a trace amount of cocaine and packaging materials consistent with cocaine trafficking. A subsequent search warrant issued on January 31, 2012, based in part on the result of the trash pull, yielded approximately $5, 000 in cash and a digital scale with a trace amount of cocaine on it. The next day, February 1, 2012, appellant rented a storage unit at 5275 Gender Road.
Two days later, on February 3, 2012, appellant was a passenger in his own vehicle being driven by Bruce Wiggins. During a traffic stop and search of the vehicle, police arrested appellant for possession of marijuana and cocaine. Police conducted a search incident to arrest of appellant's person and found an access card for the storage unit. Later that day, police located the storage unit, and a police canine alerted to the presence of a narcotics odor inside the unit. While police waited for a search warrant to issue, two plain-clothes police officers guarding the unit saw appellant driving his vehicle toward the unit. Two other men, Wiggins and Deandre Green, were in the vehicle with appellant. The three men attempted to flee the scene, but police eventually apprehended appellant.
Once the search warrant for the storage unit issued, police officers opened the unit and found that it was largely empty. The only items in the storage unit were an empty box and a black duffel bag. The duffel bag contained 138 grams of cocaine, two firearms, and cash.
Following the trial, the jury returned guilty verdicts as to all counts. After a sentencing hearing, the trial court sentenced appellant in a January 13, 2014 judgment entry to a term of imprisonment totaling 13 years. Appellant timely appealed his conviction to this court, and that appeal is still pending. State v. Phillips, 10th Dist. No. 14AP-79.2
On January 13, 2014, appellant filed a motion for a new trial based on newly discovered evidence pursuant to Crim. R. 33(A)(6). Appellant included with his motion an affidavit from Green. The trial court conducted a hearing on appellant's motion on February 21 and March 28, 2014. Green, appellant's only witness at the hearing, testified that he approached appellant's counsel after appellant's sentencing to inform him that the drugs found in appellant's storage unit actually belonged to Wiggins.
According to Green's testimony, Wiggins called Green a week before appellant's arrest to tell Green that he “had came [sic] up on some stuff like and he was going to make a lot of money off of it.” (Feb. 21, 2014 Tr. Vol. I, 15-16.) Green understood the “stuff” to mean drugs that Wiggins had stolen from someone else. Green further testified that, on February 3, 2012, Wiggins called Green after appellant's arrest for drug possession. According to Green's testimony, in this conversation, Wiggins informed Green that appellant was going to jail, and Wiggins said he needed to “find something to do with this other stuff that I got.” (Feb. 21, 2014 Tr. Vol. I, 20.) Green then testified that, when he accompanied Wiggins and appellant to the storage unit, it was Wiggins who yelled for appellant to “pull off” and to “get out of here” after spotting the plain-clothes police officers. (Feb. 21, 2014 Tr. Vol. I, 18.) When asked why he did not come forward with this information before or during appellant's trial, Green testified he “was scared, and * * * didn't want to get in no trouble also.” (Sic.) (Feb. 21, 2014 Tr. Vol. I, 22.) Green also testified he did not realize appellant would face such a severe sentence for these crimes.
In a decision and entry dated April 2, 2014, the trial court denied appellant's motion for a new trial. Appellant timely appeals.

State v. Phillips, 10th Dist. No. 11AP-362, 2014 WL 5768688, at *1-2 (Ohio Ct. App. Nov. 6, 2014). On November 6, 2014, the appellate court affirmed the trial court's judgment. Id. Next, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Phillips, 142 Ohio St.3d 1466 (Ohio 2015).

         The case then took an unexpected turn, which led to Petitioner seeking a new trial. The issue ultimately was appealed, and the Tenth District explained what had happened:

{¶ 3} On February 24, 2016, the Franklin County Prosecutor's Office sent a letter to appellant's counsel. In that letter, the prosecutor wrote that one of the state's witnesses at appellant's trial, Tye Downard, who at the time was a detective with the Reynoldsburg Police Department (“RPD”), had been arrested by the Federal Bureau of Investigations and charged in federal court with possession with intent to distribute drugs. Downard's alleged conduct occurred between October 2015 and February 2016. Downard killed himself in jail days after his arrest. In light of that development, appellant filed a motion for leave to file a motion for new trial based on newly discovered evidence, arguing in part that Downard's testimony was no longer credible. The state opposed appellant's motion, arguing that Downard's alleged criminal conduct was not material to appellant's defense and that Downard played a very minimal role in appellant's case.
{¶ 4} Shortly after filing his motion, appellant supplemented the motion with evidence that another RPD officer involved in appellant's case, Sergeant Shane Mauger, had agreed to plead guilty in federal court to counts of conspiracy to deprive persons of civil rights and federal program theft. The convictions were based upon Mauger's conspiracy with others to steal money and property that he obtained from the execution of search warrants or other police actions. Appellant also alleged that Mauger had filed search warrant affidavits that contained false statements. Again, appellant challenged the credibility of Mauger's testimony during appellant's trial based upon Mauger's convictions. In its response, the state emphasized the minimal role that Mauger played in appellant's case.
{¶ 5} The trial court denied appellant's motion for leave to file a motion for a new trial. The trial court concluded that the evidence of Downard's and Mauger's criminal conduct was not material to appellant's defense because the case against him was “overwhelmingly” handled by the Whitehall Police Department (“WPD”). Although the trial court noted Downard's and Mauger's “small role” in the beginning of the case, it concluded that the evidence against appellant was obtained by the WPD and not by the RPD. The trial court also noted that appellant's defense at trial did not involve the credibility of either of these witnesses. Rather, his defense was based on his assertion that the drugs and weapon found by the police were not his.

State v. Phillips, 10th Dist. No. 17AP-21, 2017 WL 4334159, at *1-2 (Ohio Ct. App. Sept. 29, 2017). On September 29, 2017, the appellate court affirmed the judgment of the trial court. Id. The Ohio Supreme Court again declined to accept jurisdiction. State v. Phillips, 153 Ohio St.3d 1442 (Ohio 2018).

         On July 12, 2019, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § ...


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