901 F.3d 578 (5th Cir. 2018), 17-70007, Murphy v. Davis

Docket Nº:17-70007
Citation:901 F.3d 578
Opinion Judge:KING, Circuit Judge
Party Name:Jedidiah Isaac MURPHY, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
Attorney:Randolph Lee Schaffer, Jr., Schaffer Firm, Houston, TX, Richard Ellsworth Wetzel, Austin, TX, for Petitioner-Appellant. George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.
Judge Panel:Before KING, DENNIS, and COSTA, Circuit Judges.
Case Date:August 24, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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901 F.3d 578 (5th Cir. 2018)

Jedidiah Isaac MURPHY, Petitioner-Appellant

v.

Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

No. 17-70007

United States Court of Appeals, Fifth Circuit

August 24, 2018

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Appeal from the United States District Court for the Northern District of Texas

Randolph Lee Schaffer, Jr., Schaffer Firm, Houston, TX, Richard Ellsworth Wetzel, Austin, TX, for Petitioner-Appellant.

George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

Before KING, DENNIS, and COSTA, Circuit Judges.

OPINION

KING, Circuit Judge

Jedidiah Isaac Murphy was convicted and sentenced to death by a Texas jury for the capital murder of Bertie Cunningham. After unsuccessfully pursuing state appellate and habeas remedies, Murphy brought a federal habeas petition, which eventually was denied. We recently granted Murphy a certificate of appealability to appeal the denial of two of his federal habeas claims. See Murphy v. Davis, 732 Fed.Appx. 249, 251-52 (5th Cir. 2018) (per curiam). Murphy’s first claim alleges that his trial counsel was constitutionally deficient during the penalty phase of trial by failing to correct a potentially misleading impression created by one of his experts. Murphy’s second claim alleges the State suppressed

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material impeachment evidence of a pretrial conversation between a State witness and the lead prosecutor in his case. Upon full review, we agree with the district court that these claims are either procedurally barred or meritless. We AFFIRM.

I.

A.

After robbing 80-year-old Bertie Cunningham at gunpoint, Jedidiah Isaac Murphy forced her into the trunk of her own car and shot her in the head. He then drove around with her body in the trunk, using her ATM card and credit cards to buy beer and liquor. Murphy was soon arrested. He admitted to the shooting and led police to the creek where he had dumped Cunningham’s body. Later at the police station, he wrote and signed a statement claiming that he accidentally shot Cunningham while forcing her into her own trunk.

In June 2001, a Texas jury convicted Murphy of capital murder. The State of Texas sought the death penalty. During the penalty phase of the trial, the sides clashed over the future threat to society Murphy would pose if allowed to live.

In particular, the severity of Murphy’s history of violence was a point of contention. To demonstrate he had such a history, the State submitted Murphy’s record of theft convictions. A responding officer also testified for the State about a domestic-abuse call involving Murphy and his girlfriend. The officer said that when he entered Murphy’s home, the girlfriend had a bloody nose and Murphy had a knife. The officer subdued Murphy with pepper spray. Another State witness said that Murphy pulled a gun on her at a high school party. He put the gun to her head, asked if she was afraid to die, and held it there for a minute. One of Murphy’s coworkers also testified for the State. She claimed that Murphy talked about having access to guns, bragged about shooting people, and threatened to "knock [her] fucking head off." The woman was so frightened that she quit her job and reported Murphy to the police.

Along with this, the State tried to implicate Murphy in a three-year-old kidnapping case. Sheryl Wilhelm testified for the State that, three years before the Cunningham killing, a man briefly kidnapped her and then stole her car. After seeing a TV news report on Cunningham’s murder featuring Murphy’s photo, Wilhelm called the police to report Murphy as her kidnapper. She identified Murphy during a pretrial hearing and then again at trial. Wilhelm also testified at trial that she identified Murphy in a police-constructed photo lineup. The detective who conducted the photo lineup testified that Wilhelm’s "was one of the better photo" identifications he ever had. According to the detective, Wilhelm said "she was virtually sure that that was the guy who abducted her."

Murphy attacked Wilhelm’s identification in a few ways. He called a psychologist who testified that Wilhelm’s memory was tainted by the photo of Murphy she saw on the news. The psychologist also pointed out prominent differences between a composite sketch, made just a week after the kidnapping, and the press-released photo of Murphy. And the psychologist added that the photo lineup was unfairly constructed; obvious differences between the mugshots reduced the odds of selection from one-in-six to one-in-three. Murphy also put on an alibi defense. Wilhelm said she had been kidnapped, escaped, and had her car stolen at 11:30 a.m. in Arlington, Texas. The day after her kidnapping, Wilhelm’s car was found in Wichita Falls, Texas. In the car, the police found documents belonging to another woman. That

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woman had been assaulted and had her purse stolen in Wichita Falls at 8:24 p.m. on the day of Wilhelm’s kidnapping. Also on the same day, Murphy clocked in for his night shift at 11:54 p.m. in Terrell, Texas. Murphy’s counsel argued that Murphy did not have time to kidnap Wilhelm in Arlington, rob the other woman in Wichita Falls, and make it to work in Terrell.

The trial did not just focus on Murphy’s dangerousness. Murphy claimed that mitigating circumstances reduced his moral blameworthiness. To make his case, Murphy called, among others, a psychologist named Dr. Mary Connell. Dr. Connell had interviewed Murphy three times, interviewed Murphy’s family and other acquaintances, and reviewed his records. From this, Dr. Connell was able to testify in detail about Murphy’s background. She explained that Murphy’s father was an abusive alcoholic. By seven, both of Murphy’s parents had abandoned him and he was put in the foster-care system. In the system, Murphy went through five families. His first adoptive father hit and screamed at him. His second adoptive family broke up. As Murphy grew older, he became an alcoholic and he started to feel like he was falling into his father’s pattern of abuse. He attempted suicide and sought out psychiatric treatment for depression, psychosis, and anxiety.

Drawing on what she had learned, Dr. Connell testified that Murphy "is generally described by people as a warm, outgoing, loving kind of person." Dr. Connell added that Murphy expressed remorse for his crime and that "he talked about Ms. Bertie Cunningham in almost a reverent or awed way." Based on his early childhood abuse and abandonment, Murphy became self-loathing. Per Dr. Connell, Murphy’s drinking was driven by "a genetic predisposition," a desire to temporarily feel better about himself, and "his identification with his father." Like his father, he saw himself as nothing but a worthless drunk. Dr. Connell did admit, however, that Murphy is "unpredictable," "moody," and "impulsive"— behaviors that intensify when he is drinking. According to Dr. Connell, Murphy is intermittently violent. "[H]e could maintain an even keel for a period of a month or two ... but then something would set him off and he would go on another binge, get aggressive, angry, loud, belligerent, and things would spiral downward and out of control."

Dr. Connell also testified that she gave Murphy two tests: the Minnesota Multiphasic Personality Inventory-II (MMPI-2) and the Millon Clinical Multiaxial Inventory-III (MCMI-3). As background, the MMPI-2 and MCMI-3 consist of 567 and 175 true-false questions, respectively. For both tests, the subject’s answers are fed through a database. A computer program, using group statistical data, then returns a profile on the subject. Upon request, an interpretative report— which supplies further hypotheses about the subject— may also be returned. Per Dr. Connell, the MMPI-2 is the "flagship" personality-assessment test and the MCMI-3 assesses the subject for character problems.

Murphy’s MMPI-2 profile and interpretative report showed, according to Dr. Connell, that Murphy exhibited signs of depression, anxiety, physical ailments, and paranoid thoughts. At first, Dr. Connell thought Murphy might be exaggerating his symptoms— a fact suggested by elevated results on the MMPI-2’s "lie scale." But when she looked at his answers and compared them to the interviews they had, she concluded Murphy was not lying. Turning to Murphy’s MCMI-3, the test result’s suggested, per Dr. Connell, that Murphy was "deeply depressed with an agitated edge." His thoughts, according to Dr. Connell,

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would shift between suicide, hopelessness, and futility "to occasional outbursts of bitter discontent or irrational demands." Murphys results on both tests...

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