Murphy v. Sloan

• Decision Date: 27 October 2015
• Docket Number: CASE NO. 1:14-cv-02445
• Court: U.S. District Court — Northern District of Ohio
• Parties: CHRISTOPHER MURPHY, Petitioner, v. BRIGHAM SLOAN, Warden Respondent.

CHRISTOPHER MURPHY, Petitioner, v. BRIGHAM SLOAN, Warden Respondent.

CASE NO. 1:14-cv-02445

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

October 27, 2015

JUDGE SARA LIOI

MAGISTRATE JUDGE GREG WHITE

REPORT AND RECOMMENDATION

Petitioner Christopher Murphy ("Murphy") challenges the constitutionality of his conviction in the case of State v. Murphy, Cuyahoga County Court of Common Pleas Case No. CR-11-558029-A. Murphy, represented by counsel, filed his Petition for a Writ of Habeas Corpus (ECF No. 1) pursuant to 28 U.S.C. § 2254 on November 5, 2014. On January 23, 2015, Warden Brigham Sloan ("Respondent") filed his Answer/Return of Writ.¹ (ECF No. 9.) Murphy filed a Traverse on June 6, 2015, to which the Respondent replied. (ECF Nos. 19 & 21.) For reasons set forth in detail below, it is recommended that Murphy's petition be DENIED.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgmentof a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6^th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6^th Cir. 2011). The state appellate court summarized the facts underlying Murphy's conviction as follows:

[*P1] Defendant-appellant Christopher Murphy appeals from his sentence for aggravated burglary and felonious assault, both with firearm specifications. Murphy argues that the trial court should have merged the firearm specifications, that his plea was not entered knowingly and voluntarily, that his trial counsel was ineffective, and that the trial court should have merged the aggravated burglary and the felonious assault charges. We disagree. The trial court's final judgment is affirmed.

[*P2] On November 11, 2011, Murphy and three unknown juveniles entered the Terrace Tower apartment building with firearms. Murphy and the juveniles entered one of the apartments, robbing at gunpoint Lawrence Tanner, Tonia Colvin-Ward, and Khalilah Thomas. Murphy pistol-whipped Tanner and Colvin-Ward. After exiting the apartment, Murphy attempted to flee the building and, in doing so, he brandished a firearm, threatening security guard Timothy St. Clair.

[*P3] As a result of the incident, Murphy was charged in a thirteen-count indictment. Murphy pleaded guilty to aggravated burglary (R.C. 2911.11(A)(2)) and to felonious assault (R.C. 2903.11(A)(1)). The state nolled the other counts. Both counts included one and three-year firearm specifications (R.C. 2941.141(A); R.C. 2941.145(A)). The two charges were divided amongst the four victims as follows: Tanner (both counts), Colvin-Ward (both counts), Thomas (aggravated burglary), and St. Clair (felonious assault).

[*P4] Murphy was sentenced to twenty-years imprisonment. Murphy's sentence included eight years on the aggravated burglary charge and six years on the felonious assault charge to be served consecutively. The trial court merged the one-year firearm specifications with the three-year firearm specifications but imposed the two three-year specifications consecutively to each other and to the underlying offenses.

State v. Murphy, 2013-Ohio-2196 at ¶¶1-4 (Ohio Ct. App., May 30, 2013).

II. Procedural History

A. Conviction

On January 25, 2012, a Cuyahoga County Grand Jury charged Murphy with three counts of kidnapping in violation of Ohio Revised Code ("O.R.C.") § 2905.01(A)(2); one count of aggravated robbery in violation of O.R.C. § 2911.01(A)(1); one count of robbery in violation of O.R.C. § 2911.02(A)(2); three counts of aggravated burglary in violation of O.R.C. § 2911.11(A)(1) & (A)(2); three counts of felonious assault in violation of O.R.C. § 2903.11(A)(2); one count of burglary in violation of O.R.C. § 2911.12(B); and, one count of petty theft in violation of O.R.C. § 2913.02(A)(1). (ECF 9-1, Exh. 1.) All charges, except petty theft, carried one and three year firearm specifications pursuant to O.R.C. §§ 2941.141(A) & 2941.145(A). Id. Finally, all charges with the exception of burglary and petty theft carried repeat violent offender specifications under O.R.C. § 2941.149(A). Id.

On February 2, 2012, Murphy, represented by defense counsel, entered guilty pleas to one count of aggravated burglary and one count of felonious assault, both carrying one and three year firearm specifications. (ECF No. 9-3, Exh. 3.) The remaining charges were nolled. Id.

On February 21, 2012, Murphy was sentenced to eight years in prison for aggravated burglary, six years for felonious assault, and three years on each gun specification.² (ECF No. 9, Exhs. 4 & 5.) The sentences were to be served consecutively for an aggregate prison term of twenty (20) years. (ECF No. 9-4, Exh. 4.)

B. Direct Appeal

On March 21, 2012, Murphy, through new counsel Erika Cunliffe,³ filed a Notice of Appeal with the Court of Appeals for the Eighth Appellate District ("state appellate court") raising the following assignments of error:

1. The trial court violated Mr. Murphy's rights under the Double Jeopardy clause by failing to merge the gun specifications in Count Six and Nine because the offenses were committed as part of the same transaction.

2. The trial court violated Mr. Murphy's rights under the Double Jeopardy clause by failing to merge the aggravated burglary and felonious assault charges because the offenses were allied.

(ECF No. 9, Exhs. 6 & 7.)

Murphy was also granted leave to raise the following supplemental assignments of error:

3. Christopher Murphy's guilty plea was not entered knowingly and intelligently because the trial court advised him during his plea colloquy that his sentences on the firearm specifications would merge then concluded at sentencing that they need to be imposed consecutively.

4. Trial counsel provided ineffective representation at Mr. Murphy's change of plea hearing by erroneously advising him that the law required the sentences imposed on the two firearm specifications to merge, when the law in fact appears to require the two mandatory gun specification sentences to be served consecutively.

(ECF No. 9, Exhs. 9-10, 12.)

On March 28, 2013, Murphy, through counsel, filed a motion to stay his appeal pending the outcome of a motion to withdraw his guilty plea filed the previous day. (ECF No. 9-14 at 3.) The motion to stay was denied. (ECF No. 9-15, Exh. 15.)

On May 30, 2013, the state appellate court affirmed Murphy's conviction and sentence.(ECF No. 9-16, Exh. 16.)

On July 15, 2013, Murphy, through counsel, filed a Notice of Appeal with the Supreme Court of Ohio raising the following propositions of law:

I. A guilty plea is not entered knowingly and intelligently where the court fails to advise the defendant during his plea colloquy of the mandatory consecutive nature of the sentences that he will receive.

II. Trial counsel provides ineffective assistance of counsel when she fails to adequately familiarize herself with changes in the law where those changes impact the outcome of her client's case.

(ECF No. 9, Exhs. 17 & 18.)

On November 6, 2013, the Court declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (ECF No. 9-20, Exh. 20.)

C. Motion to Withdraw Guilty Plea

On March 27, 2013, Murphy, through counsel Cunliffe, filed the aforementioned motion to withdraw his guilty plea. (ECF No. 9-21, Exh. 21.) Therein, the following arguments were raised:

1. Mr. Murphy's guilty plea was not knowing and intelligent because he entered it without understanding that the law required the court to impose multiple mandatory consecutive terms.

2. When it accepted Mr. Murphy's guilty plea, the fact that Mr. Murphy was not aware of his sentencing exposure compromised the voluntariness of that guilty plea.

3. Trial counsel failed to advise Mr. Murphy before he entered his guilty plea of the likelihood that his sentences would not merge and that the law required the mandatory sentences imposed on the two firearm specifications to be served consecutively to each other.

(ECF No. 9-21, Exh. 21.)

On April 12, 2013, Murphy's motion to withdraw his guilty plea was denied. (ECF No. 9-23, Exh. 23.)

Almost two years later, on April 7, 2015, the same day he requested to stay the instant action, Murphy requested leave to file a delayed appeal with the state appellate court from the order denying his motion to vacate his guilty plea. (ECF No. 14-1.) According to the state appellate court's online docket, the motion for delayed appeal was denied without an opinion on April 22, 2015.

On May 19, 2015, Murphy filed a notice of appeal with the Supreme Court of Ohio. (ECF No. 17-1.) As of today's date, October 27, 2015, no ruling has been made.

D. Federal Habeas Petition

On November 5, 2014, Murphy filed a Petition for Writ of Habeas Corpus asserting the following grounds for relief:

GROUND ONE: Guilty plea invalid because trial court advised defendant that it was possible for him to receive an eight-year sentence, when in fact as a matter of law that was not possible.

Supporting Facts:

1. Court advised defendant that he could receive an eight-year sentence if he pled guilty.

2. In fact, the minimum sentence was 11 years.

3. But for the incorrect advice on the minimum sentence Defendant would not have pled guilty.

GROUND TWO: Trial counsel provided ineffective assistance in advising Defendant that he could receive a sentence of six years when in fact he could not have as a matter of law.

Supporting Facts:

I. Counsel advised me that as a matter of law I could receive a sentence of six years.

II. As a matter of law the minimum sentence I could have received was eleven years.

III. But for this erroneous advice I would not have pled guilty.

(ECF No. 1.)

III. Exhaustion and Procedural Default

A. Exhaustion Standard

Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. § 2254(b),( c). This requirement is satisfied "when the highest court in the state in which the petitioner was...