Murphy v. State of Idaho

Filing 17

MEMORANDUM DECISION AND ORDER granting 9 Motion to Dismiss; denying 12 Motion to Appoint Counsel. The Clerk of Court shall provide Petitioner with a copy of the successive petitions form that can be filed with the United States Court of Appeals for the Ninth Circuit. Signed by Judge Ronald E Bush. (Clerks office has sent form to Mr. Murphy as per this Order) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL DAVID MURPHY,
Case No. 1:10-cv-00510-REB
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
WARDEN TIM WENGLER,1
Respondent.

Pending before the Court in this habeas corpus action is Petitioner’s Motion for
Appointment of Counsel (Dkt. 12) and Respondent’s Motion to Dismiss (Dkt. 9). Both
parties have consented to the jurisdiction of a United States Magistrate Judge to enter
final orders in this case. (Dkt. 4, 8.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that the decisional process would not be significantly aided by oral argument.
Therefore, in the interest of avoiding further delay, the Court shall decide this matter on
the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order.

1

See Notice of Substitution, filed May 5, 2011. (Dkt. 14.)

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The State brought multiple criminal charges against Petitioner in the Fourth
Judicial District Court in Ada County, Idaho. Pursuant to a plea agreement, Petitioner
pleaded guilty to and was convicted of one count of robbery, for which he was sentenced
to 40 years fixed with life indeterminate. He also pleaded guilty to and was convicted of
three counts of rape, for which he was sentenced to concurrent terms of 40 years fixed
with life indeterminate. Judgment was entered on December 31, 1992. (State’s Lodging
A-1.)
Petitioner filed a direct appeal in 1993 and a post-conviction relief petition in state
court in 1995. He pursued both cases through the state appellate courts, without success.
(State’s Lodgings B-1 to B-5, C-1 to D-13.) In 2006, Petitioner filed a Rule 35 motion to
correct his sentence and pursued it through appeal, again without success. (State’s
Lodgings E-1 to F-8.)
Petitioner filed a first federal habeas corpus petition (first petition) in 2007, which
was dismissed with prejudice in 2008. That action is discussed in detail below.
Petitioner filed a successive state post-conviction application in 2008, containing
claims based on Estrada v. State, 149 P.3d 833, 838 (Idaho 2006). Estrada is an Idaho
Supreme Court case relying on Estelle v. Smith, 451 U.S. 454 (1981), holding that a
criminal defendant has a Fifth and Sixth Amendment right to assistance of counsel during
a court-ordered psychosexual evaluation to be used for sentencing. (State’s Lodging G-1.)
The Idaho Court of Appeals determined that Petitioner’s successive state post-conviction
MEMORANDUM DECISION AND ORDER - 2

application was untimely, and that no exception permitted him to proceed on the untimely
Estrada claims, because Estrada did not announce a new rule of law that should be given
retroactive effect. (State’s Lodging H-3.)
Petitioner filed his current federal Petition for Writ of Habeas Corpus (second
petition) on October 15, 2010. Petitioner brings several federal claims based on Estrada.
MOTION FOR APPOINTMENT OF COUNSEL
Petitioner has requested appointment of counsel in this case. (Dkt. 44.) There is no
constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S.
722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel
is necessary for effective discovery or an evidentiary hearing is required in his case. See
Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may
exercise its discretion to appoint counsel for an indigent petitioner in any case where
required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B).
Whether counsel should be appointed turns on a petitioner’s ability to articulate his
claims in light of the complexity of the legal issues and his likelihood of success on the
merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
To date, Petitioner has demonstrated that he can protect his interests in this habeas
corpus action. His pleadings and papers, including his responses to the State's motions, are
well-organized and appropriate. A review of the record does not show a high likelihood of
success on the merits, given the narrow standard of relief in 28 U.S.C. § 2254(d). In

MEMORANDUM DECISION AND ORDER - 3

addition, prior to reaching the merits, the Court must address a simple, narrow procedural
issue, for which appointment of counsel is not required.

The Court is aware that inmates have few legal resources. The Court independently
reviews the case citations and references provided by the State for accuracy and
applicability, and also does its own research to determine whether other cases not cited by
the State apply. The appellate review process is available to ensure that the case has been
adjudicated according to the proper legal standards. Petitioner’s inability to more fully
litigate his claims are “incidental (and perfectly constitutional) consequences of conviction
and incarceration.” Id. at 355. Appointment of counsel is not warranted on Petitioner’s
argument that he lacks additional legal resources.
Because appointment of counsel would not benefit the Court in the decisionmaking
process, the Court will deny Petitioner’s second request for appointment of counsel (Dkt.
12).
RESPONDENT’S MOTION TO DISMISS
1.

Standard of Law
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court.” In such case, the Court construes the facts in a light most favorable to the
petitioner. It is appropriate for the Court to take judicial notice of court dockets from other

MEMORANDUM DECISION AND ORDER - 4

court proceedings, including state courts. Fed. R. Evid. 201(b); Dawson v Mahoney, 451
F.3d 550, 551 (9th Cir. 2006).
Before an Idaho state prisoner can file a second or successive federal habeas corpus
petition challenging the same conviction or sentence as in his first habeas corpus petition,
he must first obtain authorization from the United States Court of Appeals for the Ninth
Circuit. 28 U.S.C. § 2244(b)(3)(A). In Tyler v. Cain, 533 U.S. 656 (2001), the United
States Supreme Court explained the criteria used to determine whether a “second or
successive petition” can proceed:
If the prisoner asserts a claim that he has already presented in a previous
federal habeas petition, the claim must be dismissed in all cases. 28 U.S.C. §
2244(b)(1). And if the prisoner asserts a claim that was not presented in a
previous petition, the claim must be dismissed unless it falls within one of
two narrow exceptions. One of these exceptions is for claims predicated on
newly discovered facts that call into question the accuracy of a guilty
verdict. § 2244(b)(2)(B). The other is for certain claims relying on new rules
of constitutional law. § 2244(b)(2)(A).
533 U.S. at 661-62.
Case law has further clarified that a habeas petition is considered a “second or
successive petition” only if the first petition was dismissed with prejudice, whether on
procedural grounds or on the merits of the claims. Slack v. McDaniel, 529 U.S. 473, 48586 (2000); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Henderson v. Lampert,
396 F.3d 1049 (9th Cir. 2005).
A federal district court may not, “in the absence of proper authorization from the
[Ninth Circuit], consider a second or successive habeas application.” Cooper v. Calderon,

MEMORANDUM DECISION AND ORDER - 5

274 F.3d 1270, 1274 (9th Cir. 2001) (internal quotation marks and citation omitted).
Accordingly, if this Court determines that the second petition meets the criteria for a
“second or successive petition” under the statute, this Court has no jurisdiction to consider
the petition. See id., 274 F.3d at 1274 (holding that district courts lack jurisdiction to
consider unauthorized successive petitions).
2.

Discussion
In the pending Motion to Dismiss, Respondent argues that all of the claims in

Petitioner’s successive petition are subject to dismissal because the claims “were or could
have been adjudicated on their merits” in the first petition. See Cooper, 274 F.3d at 1273.
A.

First Federal Habeas Corpus Action

On May 17, 2007, Petitioner filed his first federal habeas corpus case, Case No.
3:07-cv-00230-MHW, Murphy v. State of Idaho, Director of IDOC, and Warden Kim
Jones. The first petition challenged the same convictions and sentences at issue in his
second petition, but the claims were different: in the first petition, Petitioner alleged that
his sentence violated the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments,
after the Idaho appellate courts affirmed denial of Petitioner’s March 2006 state motion to
correct an illegal sentence. Petitioner relied on a flawed argument circulating among
inmates that, in every instance, an indeterminate life sentence is the equivalent of a thirtyyear sentence, notwithstanding the actual wording of a judgment pronouncing an
“indeterminate life sentence.” Because Petitioner’s sentence was clearly within the

MEMORANDUM DECISION AND ORDER - 6

statutory confines of the penalties set forth for the convictions, there was no factual or
legal basis for release under any theory presented. (Id., Dkt. 22.)
Respondent filed a motion to dismiss the first petition on statute of limitations
grounds, but because the procedural issues were more difficult than the merits, Magistrate
Judge Mikel H. Williams, acting with consent of all parties, chose to address the petition
on the merits. As a result, the first petition was denied and dismissed with prejudice. (Id.,
Dkt. 22, 23.)
Judgment was entered, dismissing Petitioner’s first petition with prejudice on July
8, 2008. (Id., Dkt. 23.) Petitioner filed a Notice of Appeal, and both Judge Williams and
the United States Court of Appeals for the Ninth Circuit denied a certificate of
appealability. (Id., Dkt. 27, 31.) Petitioner’s case was terminated on May 22, 2009 (Id.,
Dkt. 31.)
B.

Current Habeas Corpus Action

The second petition challenges the same sentences as before, but contains different
claims–those arising from the 2008 successive state post-conviction application–which all
challenging various aspects the psychosexual evaluation under Estrada.
Petitioner argues that he was not aware of the Estrada rule (and, in fact, it did not
exist) at the time he filed his first federal habeas corpus action, and, therefore, he could not
have brought the claims in his first petition. However, while Estrada was not a published
case available to Petitioner at the time he filed his first federal petition, the successful
arguments Mr. Estrada brought could have been brought by Petitioner (or any other
MEMORANDUM DECISION AND ORDER - 7

claimant who was subjected to a presentence psychosexual evaluation, for that matter) in
his own state criminal case, based on Estelle v. Smith, 451 U.S. 454 (1981), the case the
Idaho Supreme Court relied upon in deciding Estrada.
While Petitioner’s argument relies on a common-sense approach to the filing of
successive court actions, the federal courts are constrained to act only within the statutory
exceptions that permit the filing of a second or successive petition. Here, the question is
whether Petitioner can show “that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the [United States] Supreme Court, that
was previously unavailable. 28 U.S.C. § 2244(b)(2)(A).
It is true that Estrada relied on existing United States Supreme Court precedent in
interpreting the Fifth and Sixth Amendments to the United States Constitution; but, for
“second or successive petition” purposes, Petitioner cannot show that his claim “relies on a
new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable” (emphasis added).2 Estrada is not itself a

2

While the retroactivity requirement of this statute is a determination to be made within the
federal court system, it is instructive to note that in Kriebel v. State, 219 P.2d 1204 (Idaho Ct. App. 2009),
the Idaho Court of Appeals determined that Estrada does not apply retroactively because it did not
announce a “new” rule and, even if it did, it did not constitute a “watershed” rule of criminal procedure
under Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). Id. at 1206-07. Teague established the
principle that, absent certain narrow exceptions, new constitutional rules of criminal procedure that are
decided after a defendant’s conviction becomes final on direct appeal will not be applied retroactively to
the defendant if he seeks collateral review of his conviction. 489 U.S. at 310. This non-retroactivity
principle has been used to govern habeas corpus cases since its adoption by a majority of the United
States Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 313 (1989), abrogated on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002).
MEMORANDUM DECISION AND ORDER - 8

United States Supreme Court case;3 nor has the principle established by Estrada
specifically been recognized in a holding of the United States Supreme Court as a new
retroactively-applicable rule. Hence, Petitioner’s claim does not fit within the exceptions
to § 2244(b). See Tyler v. Cain, 533 U.S. at 664-68 (the statute’s language, “made
retroactive,” means that there must be a holding of a case of the United States Supreme
Court specifically concluding that a principle or case can be applied retroactively).
3.

Conclusion
Petitioner cannot proceed on his Petition for Writ of Habeas Corpus because the

first petition was dismissed with prejudice, and no exception set forth in § 2244(b)(2)
applies to permit him to bring new claims arising from the same convictions and
sentences. In any event, a pre-requisite to bringing a second petition is obtaining
authorization from the Ninth Circuit Court of Appeals, which Petitioner has failed to do.
Hence, the Court is without jurisdiction to hear the merits of the claims. As a result, the
Court will not address Respondent’s argument that, regardless of the procedural defects
apparent in the Petition, Petitioner’s claims are meritless. Petitioner may request
authorization from the Ninth Circuit Court of Appeals, if he wishes to proceed with a
second petition.

3

Habeas corpus relief sought upon a legal, not factual, error of the state court can be granted only
by showing that the state court decision “is contrary to, or an unreasonable application of, clearly
established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Hence, habeas corpus relief cannot be grounded on Estrada, an Idaho Supreme Court case.
Further, any claim grounded on Estelle, the case relied on by the Estrada Court, would not be based on a
“new rule of constitutional law . . . that was previously unavailable,” as required by § 2244(b)(2)(A).
MEMORANDUM DECISION AND ORDER - 9

ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Appointment of Counsel (Dkt. 12) is DENIED.

2.

Respondent’s Motion to Dismiss (Dkt. 9) is GRANTED. Petitioner’s
Petition is DISMISSED.

3.

The Clerk of Court shall provide Petitioner with a copy of the successive
petitions form that can be filed with the United States Court of Appeals for
the Ninth Circuit.
DATED: February 9, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 10