Phillips v. Atchison

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MOSES PHILLIPS, M05907,

Petitioner, No. 12 C 07910

v. Judge Thomas M. Durkin

MINDI NURSE, Warden, Pontiac

Correctional Center,

Respondent.

MEMORANDUM OPINION AND ORDER

Petitioner Moses Phillips, a state prisoner1 currently serving a 75-year

sentence for first degree murder, seeks a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, alleging the ineffective assistance of trial counsel for failing to call alibi

witnesses, insufficient evidence to convict, and failure of the trial court to comply with

Illinois Supreme Court Rule 431(b). R. 1, 60. Respondent argues that Phillips’s claims

are procedurally defaulted. R. 34. For the following reasons, the petition is denied,

and the Court declines to issue a certificate of appealability.

Background

I. Trial Court Proceedings

Phillips was convicted of killing ten-year-old Siretha White in a drive-by

shooting of a home where her birthday party was taking place on the evening of

1 Phillips is now housed at Pontiac Correctional Center, so Mindi Nurse, Warden at

Pontiac is the new Respondent. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[T]he

proper respondent is the warden of the facility where the prisoner is being held.”).

March 11, 2006. He was also convicted of the attempted murders of Kevin Davis and

Jamar Jenkins, two adults who were on the porch of the home, and of personally

discharging a firearm. R. 35-1; People v. Phillips, No. 1-09-1948, 2011 WL 9698895,

at *1–8 (Ill. App. Ct. Mar. 23, 2011).

Jenkins, Davis, Leon Cooks, Brent Perdue, and Willie Brown testified at trial

that, around 9:00 p.m. on March 11, 2006, they were on the front porch of the home

where Siretha’s birthday party was taking place when they saw a white Cadillac and

a white Grand Prix driving up the block. Id. at *2–6. They all testified that they saw

the passenger side window of the Cadillac roll down and an individual stick his arm

out of the window and begin firing a gun. Id. Brown testified that, when he saw the

cars, he stated, “There go Mo,” (in reference to Phillips’s nickname “Little Mo”) and

that he saw Phillips stick his hand out of the passenger seat of the Cadillac and fire

numerous shots at the group. Id. at *5.

Chicago Police Detective John Halloran recounted at trial that Jenkins, Cooks,

Perdue, and Brown identified Phillips as the shooter when he interviewed them that

night. Id. at *7. He further described that Jenkins and Cooks told him that, earlier

that same day, they were in a vacant lot when a gold Ford Contour rolled up in an

alley near the lot and they saw Phillips start firing a black TEC-9 in their direction.

Id. at *1, 3. Halloran also described that Cooks and Brown identified a person named

Patrick Black as the driver of the Grand Prix. Id. Jenkins, Cooks, Perdue, and Brown

confirmed their identification of Phillips as the shooter in separate police lineups. Id.

Various assistant state’s attorneys further testified at trial that they took sworn

written statements from Jenkins, Cooks, and Perdue that Phillips was the shooter,

both at the vacant lot and during the shooting which led to Siretha’s murder, and

that they testified to the same before a grand jury. Id. at *3–5.

At trial, however, Jenkins, Cooks, and Perdue recanted their identification of

Phillips as the shooter. Id. at *2–4. They testified that they could not see who the

shooter was because it was dark outside, and the shooter was wearing a hoodie. Id.

They denied having told police at the station that Phillips was the shooter. Id.

Jenkins and Cooks further recanted their identification of Phillips as the shooter at

the vacant lot, instead saying they could not see who shot at them. Id. at *1–2.

Jenkins testified that he did not pick Phillips out of a lineup. Id. at *2. Cooks testified

that police had him sign a written statement that he did not read because he wanted

to go home and that he had identified Phillips in a line up because police had asked

him to identify Phillips specifically, not the shooter. Id. at *4. Perdue similarly stated

that he did not remember his written statement and picked Phillips out of a photo

array because police asked him to identify Phillips. Id. Jenkins’s, Cooks’s, and

Perdue’s written statements and grand jury testimonies identifying Phillips as the

shooter were therefore admitted substantively into evidence under 725 ILCS 5/115-

12. Id. at *11–12.

Chicago Police Sergeant Jose Lopez testified at trial that he conducted

surveillance on the house of Felicia Phillips, Phillips’s mother, on the night of the

murder around 11:00 p.m. R. 35-23 at 94–96. He circled the block in his patrol car to

look for a parking spot, and noticed on his second pass that there were cars parked

in front of the home that were not there the first time he passed. Id. He testified that

he parked his patrol car and witnessed a group of individuals, including Phillips, run

toward and into Felicia’s house. Id. at 96–97. He indicated that he exited his vehicle

and ordered them to stop, but they continued running into the house. Id. Kevin

Phillips, Phillips’s brother, and Felicia “slammed” the front door and refused to open

it. Id. at 98–99. Lopez looked into the front window and saw Phillips moving toward

the back of the house. Id. at 100. Lopez stated that he kicked in the door and arrested

Phillips and four others, including Phillips’s brother, Kevin, and Black, the person

two witnesses had earlier identified as the driver of the Grand Prix during the

shooting. Id. at 101–06.

Detective Halloran also described at trial that Black told him that Black’s

mother owned the Grand Prix and provided locations at which the car might be found.

2011 WL 9698895, at *7. Halloran testified the car was found near the intersection

of 63rd and Bishop Streets, that Phillips was known to associate with people in that

area, and that “63rd” and “Bishop” were tattooed on Phillips’s arm. Id.

Physical evidence was also admitted at trial. According to a firearms expert,

the shell casings recovered by police from the vacant lot matched the same gun as

those recovered from the scene of the murder. Id. at *6. An expert in gunshot residue

further testified that, at the time of Phillips’s arrest on the night of the shooting, his

hands tested positive for gunshot residue, indicating that he had discharged or

handled a firearm or touched a person who had. Id.

For his defense, Phillips called Reginald Stephens and Anthony Jordan on his

behalf, who both stated that, on March 11, 2006, from noon to 7:00 p.m., Phillips was

with them at a home helping them to rebuild the basement, and that he used a nail

gun during the work. Id. at *7. He called his own gunshot residue expert, who

indicated that it was possible for a nail gun to produce similar residue to gunshot

residue. Id. The state’s rebuttal expert disagreed, stating that he was not aware of

any nail gun ammunition manufacturer which used antimony, a substance which is

required for a positive gunshot residue test. Id. at *8. Phillips was convicted and

sentenced to 75 years imprisonment. Id. at *1.

II. Direct Appeal

On direct appeal, Phillips argued that the prosecutor improperly referenced

his tattoos and a possible gang motive without supporting evidence; his trial counsel

was ineffective for failing to object to the admission of prior statements by witnesses

and to irrelevant testimony; and the trial court violated Illinois Supreme Court Rule

431(b), a rule that requires the trial court to ask each prospective juror whether he

or she understands and accepts the presumption of innocence, the state’s evidentiary

burden, and the principle that a defendant need not testify or offer evidence. The

state appellate court affirmed Phillips’s convictions and sentence. See id. The court

found that Phillips forfeited his claim that the trial court failed to comply with Illinois

Supreme Court Rule 431(b) because he did not object at trial and did not include this

argument in his post-trial briefs. Id. at *18–19. Nonetheless, under plain error

review, the court held that the trial court’s procedure for questioning jurors, which

consisted of the court asking whether the jurors “ha[d] any problems” with the

concepts laid out in the rule, was “appropriate.” Id. at *16–18. Phillips filed a Petition

for Leave to Appeal (“PLA”) to the Illinois Supreme Court, arguing that the

prosecutor improperly referenced his tattoos and a gang motive, and that the Illinois

Appellate Court erred in denying his claim that his trial counsel was ineffective for

failing to object. R. 35-5. He did not include his Rule 431(b) argument. Id. The Illinois

Supreme Court denied his Petition on September 28, 2011. People v. Phillips, 955

N.E.2d 477 (Ill. 2011).

III. State Post-Conviction Proceedings

In September 2012, Phillips filed a pro se petition for relief from judgment

under 735 ILCS 5/2-1401 in the Circuit Court of Cook County. R. 35-7; People v.

Phillips, No. 06 CR 8512 (Cir. Ct. Cook Cty.). He asserted that his arrest violated the

Fourth Amendment; his trial counsel was ineffective for failing to move to quash the

arrest and investigate key facts and potential alibi witnesses; his appellate counsel

was ineffective for failing to raise the Fourth Amendment violation and ineffective-

assistance-of-trial counsel claim for failure to investigate on appeal; and the evidence

was insufficient to convict. Id. at 5. The Circuit Court sua sponte dismissed this

petition with prejudice, finding that the Fourth Amendment and ineffectiveness

claims were meritless and that the sufficiency claim was both waived and meritless.

R. 35-8.

On appeal from this order, Phillips argued only that the trial court

prematurely denied his § 2-1401 petition because he had not properly served the State

with the petition and, alternatively, that any dismissal should have been without

prejudice. R. 35-9; People v. Phillips, 2015 IL App (1st) 131010-U. The state appellate

court concluded that Phillips lacked standing to challenge the lack of service of his

own petition and could not benefit from his own failure to adhere to the filing

requirements. Id. at *3. The appellate court also expressly stated that Phillips waived

his substantive claims raised in the § 2-1401 petition by not arguing them on appeal.

Id. Plaintiff’s PLA to the Illinois Supreme Court appealed only the appellate court’s

rulings on the premature denial and denial with prejudice of his petition. R. 35-13.

The Supreme Court denied the PLA in January 2017. R. 35-14; People v. Phillips, 77

N.E.3d 84 (Ill. 2017).

IV. Section 2254 Petition

In 2012, concurrent with his § 2-1401 petition, Phillips also filed a pro se

habeas petition before this Court, alleging that (1) his arrest violated the Fourth

Amendment; (2) his trial counsel was ineffective for failing to: (a) move to quash his

arrest, (b) investigate key facts and potential alibis, (c) object to parts of Detective

Halloran’s testimony, (d) object to the admissibility of the witnesses’ prior statements,

(e) object to the admissibility of other crimes, and (f) allow Phillips to testify at trial;

(3) the evidence was insufficient to sustain a conviction; (4) the prosecution

improperly referred to his tattoos and a possible gang motive in closing arguments;

(5) the trial court failed to comply with Illinois Supreme Court Rule 431(b); (6) the

cumulative errors in these claims denied him his right to a fair trial; and (7) his

appellate counsel on direct appeal was ineffective for failing to raise some of the above

claims. R. 1. The case was stayed for nearly seven years while Phillips pursued his §

2-1401 petition for relief from judgment in the state courts. R. 6. Respondent filed its

answer to Phillips’s habeas petition in August 2019. R. 34. Phillips, who had by this

time retained counsel, then sought another stay so that he could pursue additional

proceedings in state court “relative to anticipated claims that are not specifically

raised in this . . . proceeding,” which this Court denied because he had not shown

good cause for a stay. R. 50, 58.

In Petitioner’s counseled reply brief, he withdrew all of the claims set forth in

his original pro se petition, save the following claims: that his trial counsel was

ineffective for failing to investigate and present alibi witnesses (claim 2(b)); that the

evidence was insufficient to sustain a conviction (claim 3); and that the trial court

failed to comply with Illinois Supreme Court Rule 431(b) (claim 5). R. 60. In support

of his reply brief, he attached affidavits from his mother, Felicia, brother, Kevin, and

the mother of his child, Laurie Kirkwood. R. 60-2. Each affidavit was executed in

2022. Id. Kevin’s affidavit states that, on March 11, 2006, the day of the shooting, he

and Phillips were working on a construction project at a house until about 7:00 p.m.,

and that they then went straight to their mother’s house and Phillips never left the

house that night. Id. Felicia’s and Kirkwood’s affidavits state that they witnessed

petitioner arrive at Felicia’s house around 6:30 p.m., and remain in their presence

the entire evening, including at the time of the shooting, until police arrived. Id. The

Court allowed Respondent to file a sur-reply in light of the new affidavits. R. 64.

Legal Standard

“Federal habeas relief from a state-court criminal judgment is not easy to come

by.” Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012). When a state court has

adjudicated a federal claim on the merits, a federal habeas court may not grant relief

unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States,” or was based on “an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

In order for a federal district court to conduct habeas review, the petitioner

must have first presented his federal claims at each level of the state court. 28 U.S.C.

§ 2254(b). A “petitioner who has exhausted his state court remedies without properly

asserting his federal claim at each level of state court review has procedurally

defaulted that claim.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). A claim

can be procedurally defaulted when it is denied by the state court “based on an

adequate and independent state procedural rule.” Davila v. Davis, 137 S.Ct. 2058,

2064 (2017). Procedural default bars the court from considering the merits of the

petition “unless the petitioner can demonstrate both cause for and prejudice

stemming from that default,” or he can establish that he is actually innocent of the

crime for which he was convicted. Id. (citing Wainwright v. Sykes, 433 U.S. 72, 86–87

(1977); Schlup v. Delo, 513 U.S. 298, 327–29 (1995)).

Analysis

I. Phillips’s Claims Are Procedurally Defaulted

This Court cannot consider the merits of Phillips’s claims because they are

procedurally defaulted. Here, Phillips brought his claims for insufficient evidence to

convict and ineffective assistance of trial counsel for failure to investigate and call

alibi witnesses in his § 2-1401 petition for relief from judgment. He did not, however,

raise the issue on appeal or in his PLA. Further, the Illinois Appellate Court clearly

held that he had waived those substantive arguments by failing to raise them on

appeal. 2015 IL App (1st) 131010-U, at *3 (citing Ill. S. Ct. R. 341(h)(7)) (“Because

defendant has presented no argument on how his petition is meritorious, we find that

he has waived this issue for review.”).

“When a state refuses to adjudicate a petitioner’s federal claims because they

were not raised in accord with the state’s procedural rules, that will normally qualify

as an independent and adequate state ground for denying federal review.” Woods v.

Schwartz, 589 F.3d 368, 373 (7th Cir. 2009) (citing Cone v. Bell, 556 U.S. 449, 464–

65 (2009)). The state appellate court’s invocation of waiver is an adequate and

independent state law ground for denying relief. Richardson v. Lemke, 745 F.3d 258,

267 (7th Cir. 2014) (agreeing with the district court that the petitioner’s claim was

procedurally defaulted because the Illinois Supreme Court held it was waived, and

that this default was an independent and adequate state law ground for judgment);

Woods, 589 F.3d at 376–77 (finding that petitioner’s claims were procedurally

defaulted because the state court’s judgment on the issues rested on independent and

adequate state ground of waiver); Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir.

2009) (“A finding of waiver by the state postconviction court is enough to establish an

adequate and independent state ground.”). Therefore, both the insufficient evidence

to convict claim and the ineffective assistance of counsel claim related to counsel’s

failure to investigate and call alibi witnesses are procedurally defaulted. This Court

is precluded from considering them on the merits absent an exception.

Similarly, Phillips’s claim that the trial court violated Illinois Supreme Court

Rule 431(b) is procedurally defaulted for two reasons. First, on direct appeal, the

Illinois Appellate Court held that the claim was forfeited because Phillips’s counsel

did not object during trial, and he did not first raise the issue in his post-trial briefs.

This was an independent and adequate state ground for denial. Kaczmarek v.

Rednour, 627 F.3d 586, 592 (7th Cir. 2010) (Illinois’s forfeiture rule is independent

and adequate state law ground precluding federal review, and “limited review [for

plain error] does not constitute a decision on the merits”). Second, Phillips failed to

raise the claim to all three levels of state court review—it was raised on direct appeal

before the Illinois Appellate Court, but it was omitted from Phillips’s PLA to the

Illinois Supreme Court. U.S. ex rel. Keller v. McCann, 553 F. Supp. 2d 1002, 1013

(N.D. Ill. 2008) (“Petitioner raised this claim on direct appeal in the Illinois Appellate

Court, but not in his PLA to the Illinois Supreme Court. . . . Accordingly, this claim

is procedurally defaulted.”); see also O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)

(requiring state prisoners to file petitions for discretionary review before state

supreme courts to avoid procedural default).2

2 Even if it were not procedurally defaulted, this claim is not cognizable. In his reply,

Phillips frames this claim as an error “of constitutional magnitude [that] deprived

[him] of a fair trial.” R. 60 at 9. But “compliance with Illinois Supreme Court Rule

II. Excusal of Procedural Default

A court can address the merits of a procedurally defaulted habeas claim if the

petitioner can show cause for the default and actual prejudice resulting from the

alleged violation of federal law, demonstrate his actual innocence, or otherwise

demonstrate that not considering the claim would work a “fundamental miscarriage

of justice.” See Woods, 589 F.3d at 377. To establish cause, a petitioner must “show

that some objective factor external to the defense impeded counsel’s efforts to comply

with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). The

petitioner must also show actual prejudice resulting therefrom, and not just the

possibility of prejudice. Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006). Phillips

here does not point to any reason for the procedural default of his claims, nor describe

any actual prejudice. He does not allege, for example, that any of the evidence was

previously unknown to him, or that the ineffectiveness of his appellate counsel caused

the procedural default.3 If a petitioner fails to argue why a procedural default may be

431(b) is not required by the United States Constitution.” Johnson v. Williams, No.

14 C 4196, 2015 WL 2452828, at *6 (N.D. Ill. May 20, 2015). Rather, it is a state court

law relating to jury instructions and is thus “beyond the scope of federal habeas

review.” Rosario v. Akpore, 967 F. Supp. 2d 1238, 1250 (N.D. Ill. 2013) (finding Illinois

Supreme Court Rule 431(b) violation was not a cognizable § 2254 claim).

3 In his original Petition, Phillips did argue that his appellate counsel was ineffective

for failing to raise on appeal the ineffectiveness of his trial counsel for failing to

investigate alibi witnesses. Phillips specifically disclaimed this argument in his reply.

Even if Phillips argued this was cause for the procedural default, this claim was itself

procedurally defaulted because the Illinois Appellate Court held that he waived it.

See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (holding that “an ineffective-

assistance-of-counsel claim asserted as cause for the procedural default of another

claim can itself be procedurally defaulted.”). Phillips has not described why the

procedural default of that claim, too, should be excused.

excused, the court “cannot consider his claim[s].” Crockett v. Hulick, 542 F.3d 1183,

1193 (7th Cir. 2008); Franklin v. Gilmore, 188 F.3d 877, 884 (7th Cir. 1999) (refusing

to consider whether default could be excused where petitioner did not make the

argument).

Phillips also does not establish the actual innocence exception. “The actual

innocence exception is merely a gateway through which a court can consider a

petitioner’s otherwise barred claims on their merits.” Lund v. United States, 913 F.3d

665, 668 (7th Cir. 2019). It is available only when a petition presents new and reliable

evidence of innocence “so strong that a court cannot have confidence in the outcome

of the trial,” such that it rebuts the “strong—and in the vast majority of the cases

conclusive—presumption of guilt.” Schlup v. Delo, 513 U.S. 298, 326, 332 n.42 (1995).

To establish the requisite probability that he is actually innocent, “the petitioner

must show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” Id. at 327.

In his petition, Phillips raises new evidence of innocence by reference to alibi

affidavits. Even if he had invoked the actual innocence exception, he offers only the

affidavits of his brother, mother, and the mother of his child,4 who all attest, sixteen

years after the fact,5 that Phillips was in their presence the entire night of the

4 Antonio Mason also submitted an affidavit in 2012, in which he stated that he

arrived at Felicia’s house at 10:00 p.m. on the night of the murder and was about to

play cards with Phillips and others when the police arrived and kicked down the door.

R. 1-1 at 46. This affidavit does not establish that Phillips could not have committed

the murder.

5 Kevin and Felicia submitted similar affidavits in 2012, six years after trial. R. 35-7

at 58–61.

shooting. Affidavits by close friends and family years after the event do not carry

much weight and are not subscribed much reliability. And while Schlup does not

require that actual innocence evidence be “newly discovered,” Phillips fails to explain

why these affidavits were not provided until years later. Blackmon v. Williams, 823

F.3d 1088, 1102 (7th Cir. 2016) (“[T]hey did not come forward until eight years after

the murder, a substantial delay that could affect their memories and/or their

credibility.”); McDowell v. Lemke, 737 F.3d 476, 484 (7th Cir. 2013) (“Such ‘eleventh

hour’ affidavits containing facts not alleged at trial and accompanied by no reasonable

explanation for delay are inherently suspect.”). Furthermore, the testimony of

Sergeant Lopez that he saw Phillips run into Felicia’s house around 11:00 p.m. on the

night of the murder directly contradicts the affidavits, which state that Phillips never

left Felicia’s house that night. Lopez’s testimony further established that two of the

affiants, Kevin and Felicia, attempted to help Phillips evade the police by slamming

the door behind him and refusing to let Lopez into the house.

And Phillips does not explain how, if a reasonable jury had considered the

testimony in the affidavits, they could not have found him guilty beyond a reasonable

doubt, given the plentiful evidence linking him to the crime. For example, four

eyewitnesses identified him as the shooter on the night of the shooting, in written

sworn statements given to the assistant state’s attorney’s office, in grand jury

testimony, and during independent police lineups. Though three of those witnesses

recanted at trial, the jury considered additional inculpatory evidence, including

Brown’s testimony; that Phillips was tied to an earlier shooting that same day at

which the same gun was used; that his hands tested positive for gunshot residue; that

the Grand Prix was recovered near the same intersection at which Phillips was

known to associate and which he had tattooed on his arm; and that a police officer

saw Phillips run into his mother’s house around 11:00 p.m. on the night of the

murder. See Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (in consideration of

actual innocence argument, six alibi witnesses’ affidavits were not sufficient to rebut

six eyewitnesses who testified that the petitioner committed the crime) (“the

probability that [the eyewitnesses] made the same error is small—considerably

smaller, one would think, than the likelihood that [the petitioner’s] family was willing

to commit perjury to save him from . . . punishment.”). Phillips has not presented

sufficient evidence to rebut the Schlup presumption and establish his actual

innocence. The Court can thus neither address the merits of Phillips’s claims (or

conduct an evidentiary hearing) nor excuse their default. See Woods, 589 F.3d at 377

(“The state court’s reliance on an independent and adequate state law ground in

denying a claim bars our review.”).

III. Certificate of Appealability

Rule 11(a) of the Rules Governing § 2254 Cases requires that the district court

decide whether to issue a certificate of appealability (COA) when it “enters a final

order adverse to the applicant.” To obtain a certificate of appealability, a petitioner

must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). If the district court rejects the petitioner’s claim on the merits, the court

should issue a certificate of appealability only if the petitioner demonstrates “that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). But “[w]hen

the district court denies a habeas petition on procedural grounds without reaching

the... underlying constitutional claim, a COA should issue when the prisoner shows,

at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” Id. The

Court finds Phillips’s claims are clearly defaulted and thus the dismissal of his

Section 2254 claims on procedural grounds is not debatable. Accordingly, the Court

declines to issue a COA for any of Phillips’s claims.

CONCLUSION

For the foregoing reasons, Phillips’s Section 2254 petition, R. 1, is denied, and

the Court declines to issue a certificate of appealability for any of the claims in the

petition.

ENTERED:

M Luthor

Honorable Thomas M. Durkin

United States District Judge

Dated: April 26, 2023

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