MURPHY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Filing
40
OPINION. Signed by Judge Noel L. Hillman on 4/25/2022. (dmr)(n.m.)
Case 1:17-cv-02960-NLH Document 40 Filed 04/25/22 Page 1 of 7 PageID: 2647
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYSHEIM MURPHY,
Petitioner,
Civil Action
No. 17-2960 (NLH)
v.
OPINION
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
et al.,
Respondents.
APPEARANCES:
Tysheim Murphy
668462/719455C
East Jersey State Prison
1100 Woodbridge Rd.
Rahway, NJ 07065
Petitioner pro se
Damon G. Tyner, Atlantic County Prosecutor’s Office
John J. Santoliquido, Assistant Prosecutor
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, New Jersey 08330
Attorney for Respondents
HILLMAN, District Judge
Tysheim Murphy, a state prisoner confined at East Jersey
State Prison, is proceeding on a second amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
ECF No. 7.
As part of that petition, he sought an evidentiary hearing on
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one of his claims of ineffective assistance of counsel.
36.
The Court denied that motion.
ECF No. 38.
ECF No.
Petitioner now
moves for reconsideration of that order.
ECF No. 39.
Respondents did not file any opposition.
For the reasons stated
herein, the Court will deny the motion.
I.
BACKGROUND
The facts of this case were recounted below and this Court,
affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the Honorable Bernard
DeLury, Jr., J.S.C., in his opinion denying Petitioner’s first
post-conviction relief (“PCR”) petition:
On February 3, 2007, the victim, Nyjua Kemp, while
driving home to Bridgeton, NJ after a night at the
casinos in Atlantic City, received a “chirp” from an
acquaintance, “Amy,” 1 whom he met inadvertently on a
single occasion at a convenience store near their home.
Ms. Curran stated that she was also in Atlantic City and
requested a ride. After a bit of confusion as to her
location, the victim eventually met her outside of the
Tropicana Casino where she was accompanied by two other
women. When the victim arrived, he picked up Ms. Curran
only and she provided him with directions to her sister’s
apartment. During their drive, Ms. Curran made a phone
call and said that she was on her way, along with the
victim. After arriving at Ms. Curran’s apartment, the
victim accompanied her upstairs.
Upon entering, the
apartment appeared unlocked and empty with a bottle of
liquor and some cigars on a table. Ms. Curran locked
the door behind them and stated that her sister would be
home soon.
The victim felt uneasy and said that he
“Per the State, ‘Amy’ is Amy Curran.” ECF No. 28-29 at 2 n.2.
She is also referred to as “Amy Scott” in some portions of the
record.
1
2
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intended not to stay but merely wanted to use the
restroom before leaving. Ms. Curran then approached the
bathroom door and two men emerged, the Petitioner and
Mr. Raheem Hayes. The Petitioner brandished a gun and
ordered the victim to put his hands up while Mr. Hayes
extracted the victim’s money, car keys and cell phone.
One of the men then slapped Ms. Curran and took her money
as well. 2
Mr. Hayes then tied a shoelace from the
victim’s boots around the victim’s hands, binding his
wrists. The Petitioner then announced they were going
for a ride. Ms. Curran stayed behind in the apartment
as the three men left.
The two men forced the victim into his car, at gunpoint,
while the Petitioner drove the vehicle. A few minutes
later, they ordered him to exit his vehicle. The victim
immediately complied.
The victim, then, remembering
that they had passed a police officer during their short
drive, found Officer Kien Nhan, and reported the
incident. As Officer Nhan and the victim were conversing
with one another, the victim recognized one of the
perpetrators from across the street. The suspect was
detained and later identified as the Petitioner. During
a pat-down of the Petitioner, two cell phones were
recovered, one belonging to the victim. The victim’s
phone was subsequently returned to him at the scene.
The police soon thereafter apprehended the Petitioner’s
co-defendant, Mr. Hayes in a convenience store, where
they also found the handgun described by the victim
laying on a shelf.
ECF No. 28-29 at 2.
An Atlantic County Grand Jury indicted Petitioner for
conspiracy to commit robbery, N.J.S.A. §§ 2C:5-2, 2C:15-1 (Count
1); first-degree robbery, N.J.S.A. § 2C:15-1 (Count 2); seconddegree robbery, N.J.S.A. § 2C:15-1 (Count 3); third-degree
unlawful possession of a handgun, N.J.S.A. § 2C:39-5b (Count 4);
“The victim stated that the assault on Amy appeared to be
staged.” ECF No. 28-29 at 2 n.3.
2
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second-degree possession of a handgun for unlawful purposes,
N.J.S.A. § 2C:39-4 (Count 5); fourth-degree aggravated assault,
N.J.S.A. 2C:12-lb(4) (Count 6); third-degree terroristic
threats, N.J.S.A. 2C:l2-3b (Count 7); second-degree conspiracy
to commit carjacking, N.J.S.A. §§ 2C:5-2, 2C:15-2 (Count 8);
first-degree carjacking, N.J.S.A. § 2C:15-2a(2) (Count 9);
second-degree conspiracy to commit kidnapping, N.J.S.A. §§ 2C:52, 2C:l3-1 (Count 10); second-degree kidnapping, N.J.S.A. §
2C:13-1b (Count 11); and third-degree possession of a weapon by
a convicted person, N.J.S.A. §
3.
2C:39-7 (Count 13).3
ECF No. 28-
Petitioner moved to sever his trial from his co-defendant’s,
but the trial court denied the motion.
ECF No. 28-3.
“[P]etitioner was convicted by a jury on Counts 1 through 7, and
on Count 11 as amended to criminal restraint; the jury found
petitioner not guilty on Counts 8, 9, and 10.
Petitioner
submitted Count 13 to the judge, who found him guilty.”
ECF No.
28 at 3.
On October 22, 2010, the trial court sentenced Petitioner
to a total term of 38 years imprisonment.
ECF No. 28-4.
Petitioner appealed, and the Appellate Division affirmed the
convictions but remanded for resentencing.
State v. Murphy, No.
A-4420-10, 2012 WL 1697392 (N.J. Super. Ct. App. Div. May 16,
3
Count 12 was only issued against co-defendant Hayes.
4
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2012).
The New Jersey Supreme Court denied certification on
November 9, 2012.
State v. Murphy, 56 A.3d 394 (N.J. 2012).
On
remand, the trial court again sentenced Petitioner to 38 years.
ECF No. 28-4.
The Appellate Division affirmed the new sentence.
ECF No. 28-22.
Petitioner filed a motion for post-conviction relief
(“PCR”) on December 20, 2012, which was supplemented by his
appointed counsel on March 20, 2014.
ECF No. 28-26.
The PCR
court held oral argument on May 13, 2014 and later denied the
petition without an evidentiary hearing.
ECF No. 28-29.4
The
Appellate Division affirmed, State v. Murphy, No. A-0807-14,
2016 WL 6872984 (N.J. Super. Ct. App. Div. Nov. 22, 2016) (per
curiam), and the New Jersey Supreme Court denied certification,
State v. Murphy, 166 A.3d 237 (N.J. 2017).
Petitioner filed two
more unsuccessful PCR motions but did not appeal either denial.
ECF Nos. 28-39, 28-42.
II.
STANDARD OF REVIEW
“Motions for reconsideration exist to ‘correct manifest
errors of law or fact or to present newly discovered evidence.’”
Mid-Am. Salt, LLC v. Morris Cty. Coop. Pricing Council, 964 F.3d
218, 230 (3d Cir. 2020) (quoting Harsco Corp. v. Zlotnicki, 779
The State did not provide a transcript of the PCR Hearing with
its initial answer. The Court will direct the State to produce
it within 30 days.
4
5
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F.2d 906, 909 (3d Cir. 1985)).
A court may grant a motion for
reconsideration if the moving party shows one of the following:
(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court issued its order; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice.
Johnson v.
Diamond State Port Corp., 50 F. App’x 554, 560 (3d Cir. 2002)
(quoting Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999)).
III. ANALYSIS
Petitioner seeks reconsideration of the Court’s order
denying an evidentiary hearing on Ground Eight of the second
amended petition.
He asserts the Court “overlooked” his
arguments and documentation in support of his claim that defense
counsel misled him regarding Amy Curran’s appearance at trial.
ECF No. 39 at 4.
“Because the exhibits supporting Petitioner’s
claims have been mistakenly overlooked or not addressed, and the
fact that the Respondent failed to supply the Court with a
transcript of the PCR hearing, Petitioner contends that he has
met the standard for the reconsideration of the order denying an
evidentiary hearing.”
Id.
The PCR court and the Appellate Division rejected
Petitioner’s ineffective assistance of counsel claim on the
merits.
“If a state court has already rejected an ineffective-
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assistance claim, a federal court may grant habeas relief if the
decision was ‘contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.’
Where, as here, the
state court’s application of governing federal law is
challenged, it must be shown to be not only erroneous, but
objectively unreasonable.”
Yarborough v. Gentry, 540 U.S. 1, 5
(2003) (quoting 28 U.S.C. § 2254(d)(1)).
The Court reviewed the state court record, including
Petitioner’s exhibits, and concluded it could not say that the
state courts made objectively unreasonable determinations.
Petitioner’s disagreement with the Court’s conclusion is not an
appropriate basis for a motion for reconsideration.
See United
States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J.
1999).
The motion for reconsideration will be denied.
However,
the Court will order the State to submit a transcript of the PCR
proceedings within 30 days of this Order.
IV.
CONCLUSION
For the reasons stated above, the motion for
reconsideration will be denied.
The State will be ordered to
submit a copy of the PCR hearing within 30 days.
An
accompanying Order will be entered.
April 25, 2022
Date
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN
U.S. District Judge
7
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