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Murphy v. Davis

United States District Court, N.D. Texas, Dallas Division

March 31, 2017

PATRICK HENRY MURPHY, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY, UNITED STATES DISTRICT JUDGE

         This habeas case, which was brought pursuant to 28 U.S.C. § 2254, was referred to United States Magistrate Judge David L. Horan, who entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 113) on November 29, 2016. The Report recommends that the court dismiss with prejudice Murphy's Petition for a Writ of Habeas Corpus (“Petition”) (Doc. 18), as the claims are procedurally barred. Petitioner Patrick Henry Murphy (“Petitioner” or “Murphy”) filed objections (“Objections”) (Doc. 115) to the Report. After careful review of the Petition, Report, record, applicable law, and after conducting a de novo review of those portions of the Report to which objections were made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court overrules the Objections, denies Murphy's application for a writ of habeas corpus, and dismisses with prejudice this action.

         I. Background

         Murphy was one of seven inmates who escaped from a Texas prison (the “Texas Seven”) and went on a crime spree that included the murder of police officer Aubrey Hawkins of Irving, Texas, while the inmates were fleeing from their robbery of a sporting goods store on December 24, 2000. See State v. Murphy, No. F01-00328-T (283rd Dist. Ct., Dallas Cty., Tex. Nov. 20, 2003); Vol. 1, Clerk's Record, at 64-65 (hereinafter CR at 64-65). The facts and procedural history are correctly set forth in the Report. (Report 1-7.)

         As noted in the Report, Murphy contends that he was: (1) sentenced to death without a finding that he had the purpose to commit murder or was recklessly indifferent to human life while being a major participant in the robbery (Pet. 17-26); (2) deprived of the effective assistance of counsel when his counsel failed to seek a change of venue (Pet. 26-37); (3) deprived of the effective assistance of counsel in the sentencing phase when his counsel (a) elicited highly damaging testimony from his own expert about Murphy's future dangerousness, (b) failed to conduct an adequate mitigation investigation, (c) failed to object to impermissible closing arguments, and (d) failed to object to impermissible voir dire questions (Pet. 37-96); and (4) deprived of the effective assistance of counsel in his direct appeal. (Pet. 96-97.) Respondent asserts that Murphy has not exhausted any of his claims in state court, and, therefore, his claims should be dismissed as procedurally barred. (Resp't Thaler's Answer 31-36., Doc. 40.) In the alternative, Respondent argues that all of Murphy's claims lack merit. (Answer 39-103.) Murphy responds that none of his claims is procedurally barred and that his claims have merit. (Pet. Reply to Resp't Answer 8-40, Doc. 45).

         II. Petitioner's Objections to the Report

         Murphy makes three objections to the Report: (1) that it fails to address his first claim made pursuant to Enmund v. Florida, 458 U.S. 782 (1982), Tison v. Arizona, 481 U.S. 137 (1987), and Ring v. Arizona, 536 U.S. 584 (2002) (Obj. 7-11); (2) that its conclusion that he abandoned his second claim is unsound (Obj. 12-14); and (3) that it fails to compare trial counsel's performance to what was required by the prevailing professional norms at the time of his trial. (Obj. 14-18).

         A. Murphy's First Objection

         In his first objection, Murphy argues that the Report misapprehends his first claim:

Mr. Murphy's claim is that pursuant to Ring v. Arizona, 536 U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466 (2000), and his Sixth Amendment right to a trial by jury, he cannot be sentenced to death unless a jury made the findings that made him eligible for a death sentence, i.e. that Mr. Murphy exhibited “reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death.” [Tison v. Arizona, 481 U.S. 137, 157 (1987)] Pursuant to Ring and Apprendi, these findings should have been made by the jury because they are elements of the offense that must be found before a defendant is eligible for death.

(Obj. 8.) Murphy contends that the limited version of this claim reflected in the Report is not accurate. The court disagrees.

         The Report sets forth several versions of this claim that were made before this court and the state court in connection with Respondent's assertion that this claim is unexhausted and procedurally barred. (Report 14-20.) The Report concludes that the version of this claim that was presented to the Texas Court of Criminal Appeals (“CCA”) on direct appeal is not shown to have been an unreasonable application of federal law, and that the new versions of it presented in the state habeas proceeding or this court are procedurally barred. (Report 19-20.) This determination is correct and accepted by this court.

         The version of this claim presented to this court, as reflected in the Objections, was not presented to the CCA on direct appeal. The Report quotes the allegation of the claim made in Murphy's brief to the CCA on direct appeal and correctly determines that the CCA's rejection of that claim did not constitute an unreasonable application of federal law. (Report 15, 20.) The Report also discusses the portions of Murphy's first claim that were not presented on direct appeal. (Report 20.) The magistrate judge correctly determined that an independent and adequate state ground existed to bar federal review of claims that were not presented on direct appeal, as they are barred from post-conviction habeas review. Id. at 19. Further, the Report also makes alternative findings that the portions of Murphy's first claim that were not presented on direct appeal lack merit. These findings and conclusions are correct and accepted by the court.

         Murphy's first claim as reflected in his Objections was not presented to the CCA on direct appeal and is now barred. The objection, therefore, is overruled; the claim is denied as procedurally barred; and, alternatively, it is denied for lack of merit.

         B. Murphy's Second Objection

         In his second objection, Murphy contends that the Report improperly finds that he “abandoned his claim that trial counsel provided ineffective assistance in failing to seek a change of venue.” (Obj. 12.) Murphy's objection mischaracterizes the Report, and the objection lacks merit.

         With respect to Murphy's ineffective assistance of counsel claim, the Supreme Court has held that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668, 690 (1984). The burden to establish that counsel's performance was deficient rests squarely with Defendant. See id. at 687. Contrary to Murphy's contentions, the Report merely states, “Murphy's decision to not examine counsel regarding ...


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