Murphy v. Stephens

Filing 30

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 26 Report and Recommendations. It is accordingly ORDERED Petitioner's § 2254 petitions (Dkt. #1) are DISMISSED with prejudice. Signed by District Judge Amos L. Mazzant, III on 1/4/2018. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BOBBY LEE MURPHY, #1384140
v.
DIRECTOR, TDCJ-CID

§
§
§
§
§

Civil Action No. 4:15-CV-435
Consolidated with 4:15-CV-468

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation (Dkt. #26)
concluding that Movant’s § 2254 petitions (Dkt. #1) should be denied and the cases dismissed with
prejudice. The Report and Recommendation, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration.
Petitioner filed timely objections to the Report and Recommendation. Petitioner appears to object
to the Magistrate Judge’s characterization of his claims and her finding that Petitioner failed to
show he is actually innocent. 1
In the Report and Recommendation, the Magistrate Judge found that Petitioner failed to
show actual innocence and Petitioner’s argument that a “key eye-witness testimony was
fabricated[]” unavailing. Petitioner states that the Magistrate Judge misstates his claim, because
he actually alleges that Texas Ranger Bennie fabricated the report regarding the incident. See Dkt.

1

Petitioner also alleges the Magistrate Judge “raises the AEDPA issue in itself but does not relate to my first ground
of miscarriage of justice.” Dkt. #23 at 1. In his Petition, Petitioner labels ground one as “Actual
Innocence/Miscarriage of Justice.” The two terms are often used interchangeably. See Calderon v. Thompson, 523
U.S. 538, 559 (1998) (“‘The miscarriage of justice exception is concerned with actual as compared to legal innocence.’
We have often emphasized ‘the narrow scope’ of the exception. ‘To be credible,’ a claim of actual innocence must be
based on reliable evidence not presented at trial. Given the rarity of such evidence, ‘in virtually every case, the
allegation of actual innocence has been summarily rejected.’”).

##1 at 7, 28 at 1-2.

The key eyewitness referred to in the Magistrate Judge’s

Report and Recommendation, however, is Officer Dean.

Petitioner’s claims, in effect,

allege that Texas Ranger Bennie fabricated the eyewitness account of Officer Dean in order to
unlawfully indict Petitioner.

This “invalid indictment[,]” Petitioner alleges, “makes my

factual innocence claim meritable and true.” Dkt. #28 at 2. After a de novo review of the
record, the Court concludes that the findings and conclusions of the Magistrate Judge are
correct, and adopts the same as the findings and conclusions of the Court.
Petitioner does point to an alleged discrepancy in the wording of the indictment as
compared to Officer Dean’s account, as reported, to Texas Ranger Bennie and to the testimony
prior to trial. The evidence Petitioner provides to prove his allegations, however, is not new.
Further, Petitioner has not shown that the statement made to Ranger Bennie is actually inconsistent
with the indictment, 2 or that Ranger Bennie or the District Attorney’s Office purposely fabricated
Officer Dean’s statement when preparing the indictment. Regardless, even assuming the statement
was fabricated in the production of the indictment, whether Petitioner pointed the gun at an officer
is inconsequential as to his guilt of Texas Penal Code § 19.03(a)(1). See Guerra v. State, 2009
Tex. App. LEXIS 8235 *6-9 (Tex. App. – San Antonio 2009) (upholding the conviction of the
defendant who did not point a loaded weapon at the officer, because the “essential elements of
attempted capital murder [are a]. . . : (1) [defendant], (2) acting with the specific intent to kill [an
officer], (3) while [an officer] was discharging a lawful duty, (4) knowing [the officer] was a peace
officer, (5) committed an act amounting to more than mere preparation that tended but failed to

2

Officer Dean’s statement to Ranger Bennie states, “[b]ecause of Murphy’s actions, I feared for my safety and the
safety of the other officers and civilians at the scene.” Dkt. #28-1 at 3. Officer Dean, in Ranger Bennie’s report, does
not appear to describe these “actions.” Id. Therefore, depending on any further unrecorded statement, the statements
could be consistent with either the wording of the indictment or the testimony at Petitioner’s pretrial release hearing.

.

effect the offense of capital murder.”). Thus, as the Magistrate Judge concluded, Petitioner has
not shown he is actually innocent. Therefore, the petition is time barred.
It is accordingly ORDERED Petitioner’s § 2254 petitions (Dkt. #1) are DISMISSED with
prejudice.
SIGNED this 4th day of January, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE