United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
LINDSAY, UNITED STATES DISTRICT JUDGE
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.
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.
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).
Petitioner's Objections to the Report
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).
Murphy's First Objection
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
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.
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.
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.
Murphy's Second Objection
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.
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