737 F. App'x 693
5th Cir.2018Background
- Patrick Henry Murphy, one of the "Texas Seven," escaped prison, participated in an armed robbery at Oshman’s Supersports, and was convicted of capital murder after Officer Aubrey Hawkins was shot and killed. Murphy served as lookout and had weapons and police scanners in his vehicle.
- At guilt phase the jury received four theories: murder of a peace officer and murder during a robbery, each paired with two law-of-parties theories (aider/abettor and conspiracy). Murphy objected but the court denied requests for election and for instructed verdict under Enmund.
- At penalty phase the jury received Texas special issues including a modified "anti-parties" special issue intended to address Enmund/Tison concerns; Murphy objected to its wording. The jury answered in a way that authorized death.
- Murphy filed state and federal habeas petitions raising: (1) an Enmund/Tison Eighth Amendment claim (death for non‑triggerman); (2) ineffective assistance of appellate counsel (for failing to raise Enmund/Tison on direct appeal); and (3) ineffective assistance of trial counsel at penalty phase (mitigation investigation and expert selection). The district court denied relief; Murphy sought a COA.
- The magistrate judge held an evidentiary hearing on the Martinez/Trevino issue for excusing procedural default of the trial‑counsel claim; the district court adopted the recommendation and denied a COA. The Fifth Circuit denied a COA on all claims as undebatably procedurally barred or meritless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Enmund/Tison claim (death for non‑triggerman) | Murphy: jury instructions permitted death without requisite finding that he played a major role and showed reckless indifference | State: claim was procedurally defaulted in state habeas review and, on the merits, Enmund does not bar conviction under law of parties | Denied COA — claim is undebatably procedurally barred (state abuse‑of‑writ rule); federal court won’t reexamine state‑law application |
| 2) Ineffective assistance of appellate counsel (IAAC) for not raising Enmund/Tison on direct appeal | Murphy: appellate counsel was constitutionally deficient for failing to press Enmund/Tison | State: IAAC claim was not raised in state habeas and is defaulted under Texas abuse‑of‑the‑writ; Davila forecloses Martinez/Trevino excuse for IAAC default | Denied COA — claim is undebatably procedurally barred and not excused by Martinez/Trevino or Davila |
| 3) Ineffective assistance of trial counsel (IATC) at penalty phase — mitigation and expert selection | Murphy: counsel failed reasonable mitigation investigation (missed PTSD), and calling prison‑safety witness (Woods) backfired | State: counsel conducted a timely investigation, retained and relied on a forensic psychologist (Vigen) after Wiggins; calling Woods was a reasoned strategic choice; any errors were not prejudicial given overwhelming evidence | Denied COA — underlying IATC claim is not "substantial"; counsel's strategic choices and mitigation work were reasonable, and no debatable Strickland prejudice shown |
Key Cases Cited
- Enmund v. Florida, 458 U.S. 782 (1982) (death sentence for a non‑triggerman requires major role plus reckless indifference)
- Tison v. Arizona, 481 U.S. 137 (1987) (expanded Enmund to culpable participants who demonstrated reckless indifference)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance of counsel)
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel ineffective for failing to conduct adequate mitigation investigation)
- Martinez v. Ryan, 566 U.S. 1 (2012) (limited exception allowing federal review of some trial‑counsel IATC claims when state habeas counsel was ineffective)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applying Martinez in jurisdictions with similar state procedural obstacles)
- Davila v. Davis, 137 S. Ct. 2058 (2017) (Martinez/Trevino do not excuse default of IAAC claims)
- Miller‑El v. Cockrell, 537 U.S. 322 (2003) (standard for issuing a certificate of appealability)
- Coleman v. Thompson, 501 U.S. 722 (1991) (cause and prejudice/miscarriage of justice framework for procedural default)
- Buck v. Davis, 137 S. Ct. 759 (2017) (COA standard and review of substantial showing)