Murphy v. Kelly, 94-2261
| Decision Date | 15 December 1995 |
| Docket Number | No. 94-2261,94-2261 |
| Citation | 99 F.3d 401 |
| Parties | NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. Terrence J. MURPHY, Petitioner-Appellant, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
APPEARING FOR APPELLANT: JOEL M. AURNOU WHITE PLAINS, NEW YORK
APPEARING FOR APPELLEE: JOHN J. SERGI ASSISTANT DISTRICT ATTORNEY WESTCHESTER COUNTY WHITE PLAINS, NEW YORK
Before CARDAMONE, WALKER and PARKER, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York (Brieant, Judge ), and was argued.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Petitioner-appellant Murphy appeals from a judgment of the district court (Brieant, J.) entered on September 6, 1994, denying Murphy's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Murphy's habeas petition sought to overturn his state court conviction, upon his entering of a guilty plea on December 15, 1987, for criminal possession of a controlled substance in violation of New York Penal Law § 220.18(1) on grounds relating to 1) double jeopardy, 2) speedy trial, 3) illegal search and seizure, 4) insufficient evidence, and 5) ineffective assistance of counsel.
In 1987, petitioner was observed selling cocaine to an informant on three separate occasions. On a fourth "controlled buy" on September 4, 1987, police apprehended petitioner in a parking lot. Police saw petitioner kick two clear plastic bags under the seat, ordered him out of his car, and arrested him. Containers of marijuana and cocaine were found in his car. Subsequently, petitioner consented to a search of his apartment for additional drugs. During a September 5, 1987 search of his apartment, additional drugs, $30,000 cash, and computer equipment capable of forging Metro North commuter rail tickets were found.
On December 15, 1987, Murphy pleaded guilty to criminal possession of a controlled substance in the third degree under Superior Court Information ("SCI") 87-1580. Bail was continued pending sentencing. While free on bail, Murphy apparently resumed his drug dealing operation. On January 15, 1988, Murphy offered to sell cocaine to an informant and was arrested on a further charge of criminal possession of a controlled substance in the third degree.
On February 9, 1988, petitioner was sentenced on his plea of guilty to SCI 87-1580, which covered the narcotics found at his arrest on September 4, 1987 and in his apartment on September 5, 1987. On February 26, 1988, petitioner pleaded guilty to criminal possession of a controlled substance in the fourth degree under SCI 88-191-01, which covered his January 15, 1988 drug arrest and dismissal of the felony complaint for forgery devices found during the search of his apartment on September 5, 1987. On March 9, 1988, petitioner was sentenced under SCI 88-191-01.
On March 10, 1988, Murphy filed a pro se Notice of Appeal of his conviction under SCI 87-1580. In February 1989, the Appellate Division granted the state's motion for summary reversal of the judgment of conviction, on the ground that proceeding by information was statutorily prohibited. See People v. Murphy, 539 N.Y.S.2d 376 (2d Dep't 1989). Murphy was subsequently indicted by the Grand Jury under Indictment 87-1580. Murphy waived trial by jury, and on January 25, 1990, he was convicted as charged after a non-jury trial. He was sentenced on March 9, 1990.
We review the denial of a § 2254 habeas corpus petition...
To continue reading
Request your trial
-
Surdis v. Kirkpatrick
...by this Court. Demosthenes v. Baal, 495 U.S. at 735; see also Francess v. Stone, 221 F.3d 100, 114-15 (2d Cir. 2000); Murphy v. Kelly, 99 F3d 401 (2d. Cir. 1995). Moreover, it is also worth noting, that to the extent Petitioner may have intended to argue that his right to due process was vi......
-
Surdis v. Kirkpatrick, 9:11-cv-0537 (MAD/RFT)
...Court." Id. (citing Demosthenes v. Baal, 495 U.S. at 735; see also Francess v. Stone, 221 F.3d 100, 114-15 (2d Cir. 2000); Murphy v. Kelly, 99 F.3d 401 (2d Cir. 1995)). Additionally, to the extent that Petitioner may be attempting to argue that his right to due process was violated, the arg......