Murphy v. DeWine

• Decision Date: 19 June 2012
• Docket Number: Case No. 1:11-cv-581
• Parties: WAYNE MURPHY, Petitioner, v. MICHAEL DEWINE, Attorney General Of Ohio Respondent.
• Court: U.S. District Court — Southern District of Ohio

WAYNE MURPHY, Petitioner,

v.MICHAEL DEWINE, Attorney General Of Ohio Respondent.

Case No. 1:11-cv-581

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

June 19, 2012

District Judge Sandra S. Beckwith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Wayne Murphy to obtain relief from his conviction in the Scioto County Common Pleas Court for aggravated robbery, felonious assault, and attempted murder.

Murphy is currently serving a sentence in the Commonwealth of Kentucky. His Ohio sentence has been ordered to be served consecutively to his Kentucky sentence. He is thus sufficiently "in custody" on the Ohio sentence to ground habeas corpus jurisdiction at this time. Ohio does not contest the custody issue.

Murphy pleads the following grounds for relief:

GROUND ONE: Ineffective assistance of appellate counsel for refusing to raise the preserved issue of the five (5) year delay of charges & trial that prejudiced the defense when witnesses became deceased, witnesses not able to be located, DNA evidence was lost or withheld from defense that would all have supported defendant's Actual Innocence & implicated the TRUE suspect that Mr. Dixon is covering-up for by using me as the cover-up!

GROUND TWO: Trial Court Erred when it allowed the codefendant's statement & testimony to be introduced to the Jury when the Defendant did NOT testify at trial.

GROUND THREE: Trial Court erred when ordered the Defendant to be shackled during trial.

GROUND FOUR: Trial court was in error when it allowed defendant's prior conviction to be introduced at trial, when Kentucky crime occurred nine (9) days after the Ohio crime occurred. Ohio crime occurred on July 5, 2004, the Kentucky crime occurred on July 14, 2004. The Kentucky crime should not have been introduced as prior bad acts.

GROUND FIVE: Trial Court erred & abused their discretion when it denied the defendant to receive separate trials from the codefendant.

(Corrected Petition, Doc. No. 15.)

Procedural History

On November 5, 2008, a Scioto County grand jury indicted Murphy for aggravated robbery, felonious assault, attempted murder, and conspiracy to commit aggravated robbery with William Dixon, all on July 5, 2004 (Indictment, Return of Writ, Doc. No. 18, PageID 1435-1437). On the State's motion, Murphy and Dixon's cases were consolidated for trial which was granted. Id. at PageID 1440-1442. Murphy moved to dismiss for pre-indictment delay, but the motion was denied. Murphy and Dixon were tried jointly and Murphy was convicted of aggravated robbery, felonious assault, and attempted murder. Id. at PageID 1488-1490. Judge Marshall then sentenced Murphy to twenty-eight years confinement, consecutive to his Kentucky sentence (Judgment Entry, Return of Writ, Doc. No. 18, PageID 1491-1494).

Murphy appealed raising six assignments of error:

1. The trial court erred when it ordered that the defendant remain in shackles during the jury trial.

2. The trial court erred by permitting a summary of a statement of a codefendant to be used against the defendant while restricting cross examination of a State's witness.

3. The trial court erred by permitting evidence of the defendant's prior convictions to be admitted against the defendant when such convictions were unrelated to the current charges.

4. The trial court erred by denying the defendant's motion for separate trials.

5. The trial court erred by denying the defendant's motion for a mistrial.

6. The trial court erred by sentencing defendant consecutively for allied offenses of similar import.

(Appellant's Brief, Return of Writ, Doc. No. 18, Ex. 17, PageID 1501-1533.) The Scioto County Court of Appeals overruled the first five assignments of error, but sustained the sixth. Ohio v. Murphy, 2010 Ohio 5031, 2010 Ohio App. LEXIS 4240 (Ohio App. 4th Dist. Sept. 22, 2010)(copy at Return of Writ, Doc. No. 18, PageID 1564-1597). Murphy filed a pro se appeal to the Ohio Supreme Court pleading the following propositions of law:

1. Ineffective assistance of appellate counsel for not raising the issue of the trial court's five-year time delay that affected the due process of a fair trial and the right to a complete defense. This issue was preserved by trial attorney.

2. The appellate court erred in the denial of the raised issue of appellant being shackled before the jury.

3. The appellate court erred in the denial of the raised issue of the trial court allowing a summary of the co-defendant's statement to be used against appellant during his decision not to testify.

4. The appellate court erred in the denial of the raised issue of permitting evidence of the appellant's prior conviction in Kentucky to be admitted against appellant when such convictions were totally unrelated to the current charges in this proceeding.

5. The appellate court erred in the denial of the raised issue of denying appellant's motion for separate trials from the codefendant.

(Memorandum in Support of Jurisdiction, Return of Writ, Doc. No. 18, PageID 1600-1617.) The Ohio Supreme Court declined to exercise jurisdiction over the appeal (Entry, Return of Writ, Doc. No. 18, PageID 1689).

On December 20, 2010, Murphy filed an Application for Reopening under Ohio R. App. P. 26(B) claiming ineffective assistance of appellate counsel in his appellate attorney's failure to raise the pre-indictment delay issue (Return of Writ, Doc. No. 18, PageID 1696-1729). The Court of Appeals denied the Application. State v. Murphy, Case No. 09CA3311 (Ohio App. 4th Dist. 2011)(unreported, copy at Return of Writ, Doc. No. 18, PageID 1730-1734). Murphy did not appeal to the Ohio Supreme Court, but filed the instant habeas corpus petition.

Analysis

Ground One: Ineffective Assistance of Appellate Counsel

In his First Ground for Relief, Petitioner claims he was denied effective assistance of appellate counsel when his attorney on direct appeal did not raise the claim of pre-indictment delay.

Respondent asserts that Murphy procedurally defaulted on this claim when he failed to appeal to the Ohio Supreme Court from denial of his Application to Reopen (Return of Writ, Doc. No. 18, PageID 1396-1399). Murphy admits that he did not file such an appeal, but offers asexcusing cause the failure of the Clerk of the Court of Appeals to send him a copy (Response [reply] to Answer, Doc. No. 13). He has attached apparently authentic documentation from the mail room at his current place of incarceration to show the truth of this claim. That proof adequately excuses the procedural default and this Court must decide this question on the merits.

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. ____, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

The Fourth District Court of Appeals in fact decided this claim on the merits when it dismissed Petitioner's Application to Reopen. It held as follows:

¶ 5 The standard used in reviewing an ineffective assistance of appellate counsel claim is the same standard used when considering such a claim made concerning trial counsel. See, e.g., State v. Nickelson, 75 Ohio St.3d 10, 11, 1996-Ohio-5, 661 N.E.2d 168; State v. Reed, 74 Ohio St.3d 534, 535, 1996-0hio-21, 660 N.E.2d 456. Under this standard, a reviewing court will not reverse a conviction unless the applicant can show both a deficient performance and resulting prejudice. Strickland v. Washington (1984),466 U.S. 668, 687,104 S.Ct. 2052. To establish prejudice, the applicant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the appeal would have been different. See Strickland at 687-688. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. at 694. The failure to make such a showing precludes an appellant from prevailing on his application. See State v. McGlone (1992).83 Ohio App.3d 899, 903, 615 N.E.2d 1139.

II. Pre-Indictment Delay

¶ 6 Murphy argues that he received ineffective assistance of appellate counsel because his attorney failed to appeal the trialcourt's denial of his motion to dismiss for pre-indictment delay. He claims that during the state's four-year wait to indict him, exculpatory witnesses became unavailable or their memories faded and the state lost possibly exculpatory DNA evidence.2

Note 2 Although Murphy refers to several cases involving post-accusation speedy trial rights, we limit our decision to the due process concerns surrounding pre-indictment delay.

¶ 7 A delay in prosecuting an individual may violate due process of law under Section 16. Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. State v. Luck (1984). 15 Ohio St.3d 150,472 N.E.2d 1097. at paragraph two of the syllabus.; see, also. United States v. Lovasco (1977), 431 U.S. 783. 789, 97 S.Ct. 2044; State v. Meeker (1971).26 Ohio St.2d 9, 268 N.E.2d 589, at paragraph one of the syllabus, overruled on other grounds by Luck, supra.

¶ 8 In Lovasco, the United States Supreme Court set out a two-part test to establish a violation of due process rights related to a delay in prosecution. The defendant first must establish that the delay has caused him actual prejudice. State v. Flickinger, Athens App. No. 98CA09, 1999 WL 34854, at *3, citing Lovasco at 789-790;Marion at 324; Luck at 153-154. Second. the defendant must establish that the state's reason for delaying prosecution was "unjustifiable." Flickinger at "4.

A. Evidence in the Record of "Actual Prejudice"

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