Murphy v. Thaler, Director TDCJ-CID
MEMORANDUM OPINION AND ORDER accepts 113 Findings and Recommendations, re: 18 Petition for Writ of Habeas Corpus, filed by Patrick Henry Murphy. The court overrules Murphy's 115 Objections, denies Murphy's 18 Petition for a Writ of Habeas Corpus; and dismisses with prejudice this action. The court denies a certificate of appealability. (Ordered by Judge Sam A Lindsay on 3/31/2017) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
PATRICK HENRY MURPHY,
LORIE DAVIS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Civil Action No. 3:09-CV-1368-L
(Death Penalty Case)
MEMORANDUM OPINION AND ORDER
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.
Memorandum Opinion and Order - Page 1
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 840, Doc. 45).
Memorandum Opinion and Order - Page 2
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).
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.
Memorandum Opinion and Order - Page 3
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.
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
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.”
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
Memorandum Opinion and Order - Page 4
Report merely states, “Murphy’s decision to not examine counsel regarding these strategic
decisions effectively abandons the opportunity that the Court afforded him to overcome this
presumption.” (Report 30) (emphasis added).
In Martinez v. Ryan, the Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
566 U.S. 1 (2012). 1 To comply with Martinez, the magistrate judge granted an evidentiary hearing
to allow Murphy an opportunity to prove that his claims of ineffective assistance of trial counsel
are not procedurally barred. (Order Setting Hr’g on Exception to Procedural Bar, Doc. 61.)
At that evidentiary hearing, Petitioner did not call the second-chair trial counsel, even
though he was present and available to testify. (Report 29.) While Murphy questioned his lead
trial counsel Brook Busbee (“Busbee”) about other matters, he asked no questions and presented
no evidence at this hearing regarding the decision to not seek a change of venue. (Report 30-31.)
Instead, Respondent asked Busbee about her decision to not seek a change of venue. Busbee
provided three reasons: (1) that the news coverage was not merely local but statewide; (2) that
Dallas County juries were more liberal and likely to give a life sentence to Murphy if he was
convicted; and (3) that she did not really believe that Murphy had adequate grounds for the motion.
(Report at 30-31.)
In his Objections, Murphy assails as “unsupportable” the trial counsel’s belief that the news
coverage about the Texas Seven was the same throughout the state. (Obj. 13.) Specifically, he
Trevino v. Thaler, 133 S. Ct. 1911 (2013), “extended Martinez to convictions from Texas and other jurisdictions
when an ineffective-assistance-of-trial-counsel claim could not be raised effectively in a direct appeal.” Clark v. Davis,
___ F. 3d ____; No. 14-70034, 2017 WL 955257, at *7 (5th Cir. Mar. 10, 2017) (citation omitted).
Memorandum Opinion and Order - Page 5
argues that the magistrate judge should have sua sponte compared trial counsel’s testimony to “the
twenty-nine news reports that were included as exhibits to Murphy’s petition” and found that her
beliefs were not supported by such exhibits. Murphy contends that the magistrate judge should
have made this determination, even though he did not ask Busbee about any of the exhibits during
the Martinez hearing. (Obj. 12-13.) Even if it were appropriate to do what Murphy suggests, it
would not advance his position.
Murphy acknowledges the principle that ordinarily trial counsel should be given an
opportunity to explain his or her actions before being denounced as ineffective. He, however,
argues that Busbee was afforded the opportunity to explain her actions during the evidentiary
hearing, and, therefore, her actions may be denounced as ineffective. (Obj. 13.) Murphy failed to
question Busbee about the articles, and it is unclear whether she considered them when she decided
not to move for a transfer of venue. Accordingly, she was not provided an opportunity to explain
her position regarding the specific articles that Murphy presents as exhibits.
In addition to inaccurately characterizing the finding in the Report, Murphy does not
accurately describe the testimony in question. He asserts that trial counsel testified “that every
county in Texas had the same amount of news coverage about Mr. Murphy as did Dallas County.”
(Obj. 13.) He further contends that “[Busbee] did not, however, claim that she conducted any
efforts to determine whether that was in fact the case.” Id. Murphy contends, “[t]here is simply no
support for her belief that the news coverage was exactly the same in every county in Texas.” Id.
Busbee actually testified that if a change of venue had been granted, the case would have
“gone to another county in Texas, and every county in Texas had received the same coverage and
the same news interest that Dallas had. It was a national story at the time. It was quite notorious.”
(Hr’g Tr. 63-64.) This shows that the news coverage and public interest went beyond Dallas
Memorandum Opinion and Order - Page 6
County, that is, the news coverage was statewide and even nationwide. Murphy did not ask Busbee
about her methods to determine whether the news coverage was widespread. Her testimony to
clarify this point would be necessary before the court could properly conclude that her decision
not to seek a change of venue was “unsupportable.”
In any event, nothing in the referenced exhibits contradicts Busbee’s testimony that the
news coverage “was statewide and even nationwide.” First, these exhibits do not purport to be a
comprehensive account of all news coverage in Texas during that time and, therefore, are not
capable of showing the difference in news coverage between all Texas counties. Further, despite
Murphy’s assertion, the referenced exhibits do not contain “twenty-nine news reports.” While the
first 29 exhibits reference publicity, one of them is a finding by the state trial court in the
companion case against George Rivas. (Pet. Ex. 22.) In this exhibit, the state court makes a finding
that supports trial counsel’s testimony: “The extensive news coverage of these cases extends
beyond the local media to both statewide and national coverage.” (Pet. Ex. 22, at 2.) Many of the
28 other exhibits are news stories about events that happened in other counties and the interest of
people outside Dallas County.
One of the exhibits discusses the escape of these seven inmates from the state prison unit
in South Texas and the then-ongoing search throughout the Southwest for the escapees. (Pet. Ex.
1.) Another exhibit references FBI warrants that allowed the search to extend beyond the Texas
border. (Pet. Ex. 3.) One references a hearing at the state capital in Austin on the matter. (Pet.
Ex. 4.) One references the actions taken by the Texas Governor to help pay for the trials. (Pet.
Ex. 6.) One references a San Antonio report about law enforcement officers across the state joining
in the manhunt. (Pet. Ex. 7.) One references the capture of some of the escapees in Colorado and
the continued search for the rest. (Pet. Ex. 8.) One refers to interviews with people throughout
Memorandum Opinion and Order - Page 7
the state and a television appeal by family members for escapees in Colorado to surrender. (Pet.
Ex. 9.) One references a robbery in Houston that may be connected to the Texas Seven. (Pet. Ex.
10.) One references the distribution of the escapees’ photos to the public and police “in all North
Texas cities.” (Pet. Ex. 11.) One is a Fort Worth news story about public anxiety inside and
outside of Dallas County about these crimes. (Pet. Ex. 12.) One is an article about how an officer’s
death affects smaller police departments, listing cities that include other Texas counties and
quoting professors from universities outside of Dallas County. (Pet. Ex. 16.) Another references
a television interview with a companion escapee from a Colorado jail. (Pet. Ex. 19.) Another
references extradition warrants signed in Austin and whether any of the escapees in Colorado
would waive extradition to Texas. (Pet. Ex. 21.) The nature and subject matter of these articles
show statewide interest and that these or similar articles would likely have also been reported in
other Texas counties.
The habeas petitioner carries the burden of proof. To show that a claim comes within the
Martinez exception to the procedural bar, the petitioner must “demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14. Murphy has the
burden to make this showing, but Respondent can negate substantiality by showing that the claim
lacks merit. Respondent produced evidence showing that trial counsel’s strategy was reasonable,
and Murphy did not rebut Respondent’s showing.
Murphy’s second claim was not presented in his original state habeas proceeding and
would now be barred by an independent and adequate state procedural rule. The court accepts the
finding of the magistrate judge that Murphy has not shown that this claim comes within an
Memorandum Opinion and Order - Page 8
exception to the procedural bar. The objection, therefore, is overruled. Murphy’s second claim is
denied as procedurally barred; and, alternatively, it is denied for lack of merit.
Murphy’s Third Objection
In his third objection, Murphy contends that the magistrate judge’s analysis of his third
claim related to ineffective assistance of counsel is incorrect. In his third claim, Murphy contends
that his trial counsel provided ineffective assistance during the presentation of mitigating factors
in the punishment phase of his capital murder trial. Murphy contends that the magistrate judge
failed to compare his trial counsel’s performance to what was required by the prevailing
professional norms at the time. (Obj. 14.)
Murphy provides several examples to support his objection to the Report. With respect to
his trial counsel’s alleged failure to develop evidence, Murphy contends that the magistrate judge
failed to measure his trial counsel’s method of developing evidence against the prevailing
professional norm. Murphy further contends that the magistrate judge did not properly consider
affidavits to impeach trial counsel’s testimony related to the appropriate time to request funds for
a mitigation specialist. Murphy also contends that the magistrate judge did not consider the
American Bar Association Guidelines to determine the prevailing professional norms.
Under the Strickland standard,
[t]o establish ineffective assistance of counsel, the defendant must prove: (1) that
counsel’s performance fell below an objective standard of reasonableness, ; and
(2) that the deficient performance prejudiced the defense, which requires a
showing that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Williams v. Taylor, 529 U.S. 362, 363 (2000) (citing Strickland, 466 U.S. at 694). Whether
“counsel’s representation fell below an objective standard of reasonableness [is] measured
according to prevailing professional norms.” Cullen v. Pinholster, 563 U.S. 170, 229 (2011)
Memorandum Opinion and Order - Page 9
(citation and internal quotation marks omitted). To make a viable claim of the deprivation of the
effective assistance of counsel under Strickland for failing to provide an expert with information,
the petitioner must show that the expert requested the information and that the information would
have made a difference to the expert’s opinion. See Bloom v. Calderon, 132 F.3d 1267 (9th Cir.
1997) (cited with approval by Roberts v. Dretke, 356 F.3d 632, 640 (5th Cir. 2004)); Segundo v.
Stephens, No. 4:10-CV-970-Y, 2015 WL 3766746 (N.D. Tex. June 17, 2015) COA denied sum
nom, Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. July 28, 2016); Hendricks v. Calderon, 70
F.3d 1032, 1038 (9th Cir. 1995).
Murphy’s lead trial counsel and co-counsel obtained the assistance of a fact investigator, a
prison expert, and four mental health experts to assist with the mitigation investigation prior to
trial. They conducted a thorough investigation and presented a mitigation case to the jury in
accordance with a reasonable trial strategy. (Report 44-48.) Murphy produced no evidence that
any of his trial experts did not receive information that he or she requested from trial counsel.
Moreover, Murphy has not provided evidence that any of the allegedly new life-history
information would have changed any of their opinions. Murphy also has not shown that any of
this information was not already available to and considered by his trial experts. Murphy,
therefore, has not made a viable claim of the deprivation of the effective assistance of counsel
under Strickland for failing to provide an expert with information, as he has not shown that his
trial experts requested the allegedly new life-history information and that the information would
have made a difference to the experts’ opinions.
Murphy contends that the magistrate judge failed to consider the report of Dr. Matthew
Fabian (“Dr. Fabian”), an expert that Murphy offered to show that a properly informed expert
would have found that he had post-traumatic stress disorder (“PTSD”). Murphy contends that his
Memorandum Opinion and Order - Page 10
trial counsel could have obtained a different expert that would have reached the same conclusion
as Dr. Fabian and testified that he had PTSD. As noted in the Report, for Murphy to show that he
was prejudiced by his trial counsel not calling Dr. Fabian, he must demonstrate that the opinion
witness was available to testify and would have done so. (Report 51) (quoting Woodfox v. Cain,
609 F.3d 774, 808 (5th Cir. 2010)). Murphy provided no evidence that Dr. Fabian was available
to testify at the time of trial; therefore, Murphy has not shown that he was prejudiced by failing to
call an expert similar to Dr.Fabian.
Further, with respect to other evidence related to “prevailing professional norms,” Murphy
contends that the Report did not consider Richard Burr’s (“Mr. Burr”) declaration. Mr. Burr is an
attorney who provided opinion testimony in the form of a written declaration related to whether
Murphy’s trial and state habeas counsel provided him ineffective assistance. Murphy contends
that Burr’s declaration “is illuminating on what was required by the prevailing professional norms
at the time of Mr. Murphy’s trial.” (Obj. 17.) Despite Burr’s declaration, Murphy has not satisfied
the Strickland standard, as he has not shown that he has been prejudiced by his counsel’s allegedly
Murphy also contends that the magistrate judge refused to consider his affidavits from
witnesses purporting to impeach trial counsel’s testimony regarding solicitations from potential
mitigation investigators. Trial counsel testified that, after their appointment and during the course
of trial preparation, the Supreme Court decided Wiggins v. Smith, 539 U.S. 510 (2003), which
opened up this area. She testified that prior to that time, “there was not a judge in Dallas County
who would consider spending the kind of money that we ended up spending on mitigation
investigation.” (Hr’g Tr. 17.) When Wiggins came down, the understanding of trial counsel and
her peers regarding the job of a mitigation expert was not settled in this developing field. (Hr’g
Memorandum Opinion and Order - Page 11
She also testified that during her pretrial preparation she received “a lot of”
solicitations from people representing themselves to be mitigation experts that she tossed them in
the trash. (Hr’g Tr. 18, 68.) She wanted an effective mitigation investigator or witness and would
not have been satisfied based on a solicitation trying to get her business. (Hr’g Tr. 69-70.) Instead
of relying upon an unsolicited letter or brochure claiming some training, counsel called persons
that she knew and trusted to find a qualified mitigation expert and was favorably impressed with
Dr. Mark Vigen. (Hr’g Tr. 16-19, 66-70.)
The magistrate judge did not improperly refuse to consider the evidence before him. That
Murphy’s current counsel did not consider himself prepared to cross-examine trial counsel at the
only opportunity Murphy would be afforded to do so, in no way justifies the use of posthearing
exhibits attempting to impeach her testimony. Further, these exhibits seem to confirm trial
counsel’s statements that she had received many unsolicited offers of assistance from people
claiming to be mitigation experts. (Report 44.) The magistrate judge properly ruled on these
Even if Murphy’s trial counsel provided ineffective assistance during the presentation of
the mitigating factors in the punishment phase of his capital murder trial, the court agrees with the
magistrate judge’s finding that Murphy has not proved that he has suffered any prejudice from his
counsel’s actions. Murphy’s trial counsel’s mitigation case “focused on his tragic childhood of
abuse and neglect that resulted in a lack of development and mental dysfunction that contributed
to the offense, and his mitigation expert at trial testified that he had a low risk of violence in prison
and had a possibility of rehabilitation.” (Report 52.) Murphy has not established that being
diagnosed with PTSD would have “shown that the balance of aggravating and mitigating
Memorandum Opinion and Order - Page 12
circumstances did not warrant death.” Id. Accordingly, Murphy has not demonstrated that he had
ineffective assistance of counsel under the Strickland standard.
Murphy’s third claim was not presented in his original state habeas proceeding and would
now be barred by an independent and adequate state procedural rule. The court accepts the finding
of the magistrate judge that Murphy has not shown that this claim comes within an exception to
the procedural bar. The Report properly concludes that Murphy did not present a substantial claim
that trial counsel provided ineffective assistance. (Report 40-53.) The court accepts these findings
Murphy’s objection is overruled. Murphy’s third claim is denied as
procedurally barred and, alternatively, it is denied for lack of merit.
No Objection – Fourth Claim
The court notes that Murphy has made no proper objection to the magistrate judge’s
recommendation to deny his fourth claim for relief, which asserts that his counsel on direct appeal
provided ineffective assistance for failing to raise these same claims on direct appeal. Murphy
mentions his fourth claim only in a footnote, which is waived by inadequate briefing. 2 “[A]n
argument raised in a footnote is insufficient and may be disregarded by the Court.” Gate Guard
Servs. L.P. v. Perez, 14 F. Supp. 3d 825, 833 (S.D. Tex. 2014); Bridas S.A.P.I.C. v. Gov’t of
Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (citing United States v. Hardman, 297 F.3d
1116, 1131 (10th Cir. 2002) (“Arguments raised in a perfunctory manner, such as in a footnote,
are waived.”)); Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335,
339 n.4 (5th Cir. 2016) (citation omitted) (“Arguments subordinated in a footnote are
‘insufficiently addressed in the body of the brief,’ and thus are waived.”); Dawson v. Rocktenn
Murphy asserts several other arguments in the footnotes to the Objection. To the extent that these arguments are
intended to be objections, they are also waived by inadequate briefing for the reasons set forth in this section.
Memorandum Opinion and Order - Page 13
Servs., Inc., ___ F. App’x ___; 2016 WL 7468034, at *4 n.6 (5th Cir. Dec. 27, 2016). Accordingly,
any objection to that part of the Report is waived.
In any event, to the extent that Murphy objects to the finding that his underlying claims
lack merit, those portions of the Report are correct as previously noted. (Report 54.) Further, the
Report correctly notes, and Murphy concedes in that same footnote, that binding circuit precedent
holds that the Martinez exception does not apply to claims of ineffective assistance of appellate
counsel; therefore, he argues authority from another circuit. (Report 54 (citing Reed v. Stephens,
739 F.3d 753, 778 n.16 (5th Cir. 2014)); Obj. n.7 (citing Ha Van Nguyen v. Curry, 736 F.3d 1287,
1296 (9th Cir. 2013).) 3
Murphy’s fourth claim is denied as procedurally barred and, alternatively, it is denied for
lack of merit.
Having reviewed the Report and the record in this case, 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 Murphy’s Objections (Doc. 115), denies Murphy’s
Petition for a Writ of Habeas Corpus (Doc. 18); and dismisses with prejudice this action.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability. 4 The court determines that Petitioner has failed to
The Supreme Court has recently granted a writ of certiorari to review this question in Davila v. Davis, 137 S. Ct.
810 (Jan. 13, 2017).
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate should issue. If the
court issues a certificate, the court must state the specific issue or issues that satisfy the showing
Memorandum Opinion and Order - Page 14
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by reference the Report filed in this case. In the
event that Petitioner files a notice of appeal, he may proceed in forma pauperis on appeal.
It is so ordered this 31st day of March, 2017.
Sam A. Lindsay
United States District Judge
required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the
denial but may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules. A timely notice of appeal must be filed even if the district court
issues a certificate of appealability.
Memorandum Opinion and Order - Page 15
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