Murphy v. Thaler, Director TDCJ-CID

Filing 73

Memorandum Opinion and Order granting in part, denying in part 65 MOTION to cancel evidentiary hearing and Alternative MOTION in Limine to Limit the Scope of Evidentiary Development. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 9/25/2014) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PATRICK HENRY MURPHY,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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No. 3:09-cv-1368-L-BN
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER
Respondent William Stephens has filed a Motion to Cancel Evidentiary Hearing
and Alternative Motion in Limine to Limit the Scope of Evidentiary Development. See
Dkt No. 65. Petitioner Patrick Henry Murphy has filed a response. See Dkt No. 68.
Respondent’s motion to cancel the hearing is DENIED, but his alternative motion to
limit the scope of the hearing is GRANTED to the extent explained below.
I
Respondent’s motion to cancel seeks to prevent any evidentiary development of
the ineffective-assistance-of-counsel claims that are subject to procedural bar. He first
argues that the Supreme Court’s opinions in of Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 133 S. Ct. 1911 (2013), do not concern funding or evidentiary
development. Respondent’s motion contends that “[n]owhere in either opinion did the
Court even mention evidentiary development, much less hold that the new equitable
exception somehow requires it.” Dkt. No. 65 at 3. The Court disagrees.

To the extent that Respondent suggests that the factual basis for claims
presented in proceedings under 28 U.S.C. § 2254 should be developed in state court
rather than federal court, he is correct. Construing 28 U.S.C. § 2254(e)(2), the Supreme
Court has explained:
Principles of exhaustion are premised upon recognition by Congress and
the Court that state judiciaries have the duty and competence to
vindicate rights secured by the Constitution in state criminal
proceedings. Diligence will require in the usual case that the prisoner, at
a minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law. “Comity ... dictates that when a prisoner alleges
that his continued confinement for a state court conviction violates
federal law, the state courts should have the first opportunity to review
this claim and provide any necessary relief.”
illiams v. Taylor, 529 U.S. 420, 436-37 (2000) (quoting O’Sullivan v. Boerckel, 526 U.S.
838, 844 (1999)).
But, in creating the Martinez exception to procedural bar, the Supreme Court
recognized that effective counsel is needed to do this for claims of ineffective assistance
of trial counsel. “While confined to prison, the prisoner is in no position to develop the
evidentiary basis for a claim of ineffective assistance, which often turns on evidence
outside the trial record.” Martinez, 132 S. Ct. at 1317 (emphasis added). The Supreme
Court explained that this would be a sound reason that a state may have for moving
the presentation of ineffective-assistance-of-trial-counsel claims from the direct appeal
where counsel is guaranteed to collateral proceedings where counsel is not.
“Ineffective-assistance claims often depend on evidence outside the trial record. Direct
appeals, without evidentiary hearings, may not be as effective as other proceedings for

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developing the factual basis for the claim.” Id. at 1318 (citing Massaro v. United States,
538 U.S. 500, 505 (2003)) (emphasis added).
In Trevino, Supreme Court applied this new exception to Texas cases precisely
because of the impracticality of developing the evidence necessary to properly consider
these claims in a direct appeal, as shown by the appeal deadlines in Trevino’s case. “It
would have been difficult, perhaps impossible, within that time frame to investigate
Trevino’s background, determine whether trial counsel had adequately done so, and
then develop evidence about additional mitigating background circumstances.” Trevino,
133 S. Ct. at 1919 (emphasis added). “Thus, as the Court of Criminal Appeals has
concluded, in Texas ‘a writ of habeas corpus’ issued in state collateral proceedings
ordinarily ‘is essential to gathering the facts necessary to . . . evaluate . . .
[ineffective-assistance-of-trial-counsel] claims.’” Id. at 1918 (citing Ex parte Torres, 943
S.W.2d 469, 475 (1997) (en banc) and Robinson v. State, 16 S.W.3d 808, 810-811 (Tex.
Crim. App. 2000)) (emphasis added). The Supreme Court reasoned that the Martinez
exception should be applied out of fairness to allow inmates the opportunity to develop
that evidence whether they are required to present the claim in collateral proceedings
as a matter of state law or as a purely practical matter: “were Martinez not to apply,
the Texas procedural system would create significant unfairness.” Id. at 1919.
The right involved – adequate assistance of counsel at trial – is similarly
and critically important. In both instances practical considerations, such
as the need for a new lawyer, the need to expand the trial court record,
and the need for sufficient time to develop the claim, argue strongly for
initial consideration of the claim during collateral, rather than on direct,
review.
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Id. at 1921 (citing Martinez, 132 S. Ct. at 1318) (emphasis added).
The language and reasoning for both creating the exception and applying it to
Texas cases rely on the need to allow inmates a meaningful opportunity to develop the
evidence necessary to “substantiate” their claims. Trevino, 133 S. Ct. at 1920 (citing
Robinson, 16 S.W.3d at 810)). To construe the Martinez exception as limited to a review
of an undeveloped record that is insufficient to properly consider these claims would
defeat these stated purposes.
Respondent also argues that, even if this Court is not prohibited from conducting
the evidentiary hearing, it should exercise its discretion to not do so. But the same
reasons for the existence of the exception support conducting the hearing in this case.
Respondent’s motion to cancel the evidentiary hearing is therefore DENIED.
II
In the alternative, Respondent requests that “that any live testimony should be
limited to the testimony of Murphy’s trial counsel and, potentially, state habeas
counsel.” Dkt No. 65 at 6. Respondent cites to this Court’s prior order that expressed
a preference for written exhibits in lieu of live testimony for anyone other than counsel.
See id. (citing Dkt. No. 61 at 6).
Although Murphy listed potential witnesses – specifically, four expert witnesses
– other than trial and state habeas counsel, see Dkt. No. 66 at 2, his response does not
address this alternate motion, see Dkt. No. 68.
Respondent’s alternate motion is GRANTED to the extent that, consistent with
Court’s prior order, see Dkt. No. 61 at 6 (“The Court expects to hear live testimony from
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counsel whose conduct is at issue but otherwise encourages the submission of written
exhibits in lieu of live testimony.”), the live testimony will be limited to trial and state
habeas counsel. Nothing in this order prevents any party from presenting testimony
from other witnesses by affidavit or written exhibit. See id.
III
Respondent’s motion to cancel the evidentiary hearing [Dkt. No. 65 at 2-6] is
DENIED. Respondent’s alternative motion to limit the hearing [Dkt. No. 65 at 6-7] is
GRANTED to the extent that live testimony at the scheduled hearing will be limited
to trial and state habeas counsel.
SO ORDERED.
DATED: September 25, 2014

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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