Murphy v. Powell

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 11, 2024
• Docket: 23-4118
• Status: Unpublished

Opinion

Appellate Case: 23-4118 Document: 010111013110 Date Filed: 03/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ANTHONY CHARLES MURPHY,

Petitioner - Appellant,

v. No. 23-4118 (D.C. No. 1:21-CV-00097-RJS) WARDEN ROBERT POWELL, (D. Utah)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________

Anthony Murphy, a Utah state inmate proceeding pro se, seeks a

Certificate of Appealability (COA) to appeal the district court’s denial of his

28 U.S.C. § 2254 petition. He also requests to proceed in forma pauperis (IFP).

For the reasons explained below, we deny Murphy a COA but grant his IFP

motion.

BACKGROUND

In 2016, Murphy was convicted of four felonies for sexually assaulting

his then-wife: (1) aggravated sexual assault, (2) aggravated kidnapping,

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-4118 Document: 010111013110 Date Filed: 03/11/2024 Page: 2

(3) forcible sexual abuse, and (4) aggravated assault. On the aggravated-sexual-

assault and aggravated-kidnapping convictions, he was sentenced to

consecutive terms of 15 years’ to life imprisonment. For his other two

convictions, he was sentenced to concurrent terms of 1-to-15 years’

imprisonment and zero-to-5 years’ imprisonment.

Murphy appealed his conviction to the Utah Court of Appeals. In his

appeal, Murphy raised five state-law claims, including a challenge to prior-

sexual-assault evidence admitted under Utah Rules of Evidence 403 and

404(b). 1 He also raised one federal claim—ineffective assistance of trial

counsel. The Utah Court of Appeals ruled that Murphy had waived three of his

state-law claims by failing to preserve them and failing to brief his arguments

under any “exceptions to the preservation rule,” such as plain error. State v.

Murphy, 441 P.3d 787, 792–93 (Utah Ct. App. 2019). As for his ineffective-

assistance-of-counsel claim, the court declined to decide whether Murphy’s

trial counsel’s performance was deficient because Murphy had failed to show

prejudice. Id. at 800 (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). In all, the court affirmed his convictions, rejecting his two preserved

state-law claims. Id.

1 His four other state-law claims alleged (1) prosecutorial misconduct during closing arguments, (2) wrongful denial of his motion for a mistrial, (3) wrongful failure to merge the aggravated-kidnapping charge and the aggravated-sexual-assault charge, and (4) insufficiency of the evidence. 2 Appellate Case: 23-4118 Document: 010111013110 Date Filed: 03/11/2024 Page: 3

From there, Murphy petitioned the Utah Supreme Court for certiorari. In

his petition, Murphy raised a state-law claim only: he challenged the admission

of prior-sexual-assault evidence under Utah Rule of Evidence 403. The Utah

Supreme Court denied certiorari. State v. Murphy, 466 P.3d 1074 (Utah 2020)

(table).

Murphy then filed a pro se petition for postconviction relief in Utah state

court, cabining his arguments to five legal theories: (1) insufficient evidence in

support of the convicted crimes, (2) prosecutorial misconduct, (3) violation of

Utah Rule of Evidence 702, (4) violations of Fourth and Fourteenth

Amendments, and (5) ineffective assistance of trial and appellate counsel. In

November 2020, the state court “summarily dismissed” Murphy’s first four

claims, finding them “frivolous on their face.” R. 641–42. The court concluded

that Murphy’s ineffective-assistance claims were full of “pleading errors,” so

the court granted Murphy twenty-one days to amend his petition. R. 642.

Before the twenty-one days expired, Murphy successfully moved for an

extension because he had contracted COVID-19. Murphy timely amended his

petition and added more ineffective-assistance claims, bringing his total to

twenty-two of such claims. On March 1, 2021, the court dismissed the

remaining claims, finding the claims barred for a variety of reasons. Some were

barred because Murphy had failed to raise them on direct appeal; some were

barred because they had been adjudicated on the merits; and some were

frivolous on their face.

3 Appellate Case: 23-4118 Document: 010111013110 Date Filed: 03/11/2024 Page: 4

Rather than appealing this dismissal, on May 2, 2021, Murphy petitioned

for federal habeas relief under 28 U.S.C. § 2254. 2 In his federal petition,

Murphy asserts eight claims: (1) ineffective assistance of trial counsel,

(2) ineffective assistance of appellate counsel, (3) admission of evidence

obtained from an illegal warrantless search, (4) prosecutorial misconduct,

(5) Brady violations, (6) insufficiency of the evidence, (7) a Fourteenth

Amendment violation by the Utah Court of Appeals, and (8) the admission of

evidence in violation of the Ex Post Facto Clause. Before the district court,

Murphy argued that he had cause to excuse his failure to appeal the denial of

his state-postconviction petition: he claimed that he missed the deadline

because he had emergency heart surgery. According to Murphy, he was

admitted for surgery on March 5, 2021, and remained hospitalized until March

26, 2021. Murphy asserts that, after he left the hospital, he was placed in the

prison’s infirmary until March 28. The district court concluded that Murphy

had procedurally defaulted his claims by failing to appeal any federal issues to

the Utah Supreme Court. Murphy v. Utah, No. 21-CV-97, 2023 WL 4934268, at

*6–7 (D. Utah Aug. 2, 2023).

2 Murphy mailed his § 2254 petition on May 2, 2021, but for some reason it was returned to him. He remailed it on June 28, 2021, and the petition arrived at the district court on July 1, 2021. 4 Appellate Case: 23-4118 Document: 010111013110 Date Filed: 03/11/2024 Page: 5

STANDARD OF REVIEW

Murphy must obtain a COA to appeal the district court’s order. See 28

U.S.C. § 2253(c)(1)(A). To do so, Murphy must show that “jurists of reason

would find it debatable” (1) “whether the petition states a valid claim of the

denial of a constitutional right” and (2) “whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

DISCUSSION

We first determine whether Murphy is entitled to a COA, and then we

address his motion to proceed IFP.

I. COA Application

The district court denied Murphy’s habeas petition because he had

neither exhausted his state-court remedies nor shown cause to excuse his

default. Murphy, 2023 WL 4934268, at *6–7. On appeal, Murphy claims that he

did in fact exhaust his remedies and, in the alternative, that he has shown cause

to excuse a procedural default. We first consider whether Murphy exhausted his

state remedies and then turn to any exceptions that may apply.

A state petitioner seeking federal habeas relief must first exhaust his

state remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This

exhaustion requirement, codified at 28 U.S.C. § 2254(b)(1)(A), ensures that

“state courts [have] the opportunity to resolve state cases in the first instance

before federal courts . . . intrude.” Ellis v. Raemisch, 872 F.3d 1064, 1081 (10th

Cir. 2017) (citing O’Sullivan, 526 U.S. at 844); see also O’Sullivan, 526 U.S. at

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845 (explaining that “the exhaustion doctrine is designed to give the state

courts a full and fair opportunity to resolve federal constitutional claims before

those claims are presented to the federal courts”). To exhaust his state

remedies, a petitioner must invoke the federal issue through “one complete

round of the State’s established appellate review process.” Simpson v.

Carpenter, 912 F.3d 542, 565 (10th Cir. 2018) (citation omitted). And the

petitioner must raise the federal issue “in a manner sufficient to put the courts

on notice of the federal constitutional claim.” Prendergast v. Clements, 699

F.3d 1182, 1184 (10th Cir. 2012) (citing Picard v. Connor, 404 U.S. 270, 278

(1971)).

When a petitioner has failed to exhaust his state remedies, we sometimes

dismiss those unexhausted claims without prejudice so that the “petitioner can

pursue available state-court remedies.” Grant v. Royal, 886 F.3d 874, 891–92

(10th Cir. 2018) (citations omitted). But “dismissal without prejudice . . . is not

appropriate if the state court would now find the claims procedurally barred”

and refuse to hear them. Id. at 892 (citations omitted); see also Moore v.

Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002) (“‘Anticipatory procedural

bar’ occurs when the federal courts apply procedural bar to an unexhausted

claim that would be procedurally barred under state law if the petitioner

returned to state court to exhaust it.” (citation omitted)). When a state court

would deem those claims barred under state law, we treat them as

“procedural[ly] default[ed] for the purposes of federal habeas review.” Grant,

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886 F.3d at 892 (citations omitted). The procedural default carries a heavy

burden—we will consider the claims only if the petitioner can show “cause and

prejudice or a fundamental miscarriage of justice.” Tryon v. Quick, 81 F.4th

1110, 1139 (10th Cir. 2023) (citation omitted). To show cause, a petitioner

must demonstrate that “something external to the petitioner, something that

cannot be fairly attributed to him, impeded his efforts to comply with the

State’s procedural rule.” Id. (quoting Maples v. Thomas, 565 U.S. 266, 280

(2012)). Then to show prejudice, the petitioner must establish “not merely a

substantial federal claim, such that the errors at trial created a possibility of

prejudice, but rather that the constitutional violation worked to his actual and

substantial disadvantage.” Shinn v. Ramirez, 596 U.S. 366, 379–80 (2022)

(cleaned up). And to establish a fundamental miscarriage of justice, a petitioner

must make a credible claim of actual innocence. McQuiggin v. Perkins, 569

U.S. 383, 392 (2013). The actual-innocence exception “is a markedly narrow

one” that is “implicated only in extraordinary cases where a constitutional

violation has probably resulted in the conviction of someone who is actually

innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (cleaned up).

Murphy has failed to properly exhaust his state remedies because he

never invoked any of his federal claims through “one complete round of

[Utah’s] established appellate review process.” Simpson, 912 F.3d at 565

(citation omitted). In his direct appeal to the Utah Court of Appeals, Murphy

presented one federal claim—ineffective assistance of trial counsel. But when

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Murphy petitioned the Utah Supreme Court for review, he declined to present

any federal issues and instead brought a state-law claim only. Though the Utah

Supreme Court exercises discretionary review, it is part of Utah’s “established

appellate review process.” Id. (citation omitted); see Utah R. App. P. 45

(“[T]he review of a judgment . . . of the Court of Appeals shall be initiated by

filing in the Utah Supreme Court a petition for a writ of certiorari to the Utah

Court of Appeals.”). Thus, Murphy exhausted none of his federal claims on

direct review.

Though Murphy failed to fully appeal the denial of his state-

postconviction petition, he argues that he nonetheless exhausted his state

remedies. In support, he claims that he was under no duty to appeal because

Utah Rule of Civil Procedure 65C(q) provides that he “may” appeal. But

Murphy’s duty to exhaust—and thus to appeal the postconviction denial—arises

from federal law, not Utah law. See 28 U.S.C. § 2254(b)(1)(A) (requiring a

petitioner to have “exhausted [his] remedies available in the courts of the

State”); see also § 2254(c) (noting that a petitioner has not exhausted his state

remedies “if he has the right under the law of the State to raise, by any

available procedure, the question presented”). Because Rule 65C(q) gave

Murphy the right to appeal the denial of his postconviction petition,

§ 2254(b)(1)(A) requires him to have exercised that appellate right. By failing

to exercise his right to appeal, Murphy has not properly exhausted his state

remedies.

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Murphy cannot return to state court to assert his claims, so dismissal

without prejudice is not appropriate. See Grant, 886 F.3d at 892. First, Murphy

can no longer appeal the denial of his postconviction petition because the

appellate deadline has expired. See Utah R. App. P. 4(a), (e). Second, Murphy

cannot restart the process by bringing another state-postconviction petition.

Utah bars prisoners from asserting claims in a postconviction petition that were

“raised . . . or could have been, but [were] not, raised in a previous request for

postconviction relief.” Utah Code Ann. § 78B-9-106(1)(d). So Murphy has no

avenue to present his claims to the Utah Supreme Court. Thus, his claims are

procedurally defaulted, and we will consider them only if he can show cause

and prejudice, or a fundamental miscarriage of justice. See Grant, 886 F.3d at

892.

Murphy has not shown cause and prejudice to excuse his procedural

default. Construing his brief liberally, we understand Murphy to assert that his

emergency surgery prevented him from appealing his postconviction ruling.

Even if a health emergency qualifies as “something external” to Murphy, see

Tryon, 81 F.4th at 1139, he has failed to show that his surgery prevented him

from complying with Utah’s appellate rules. The state trial court denied

Murphy’s petition on March 1, 2021, so Murphy had thirty days to appeal the

ruling. See Utah R. App. P. 4(a). But after the appellate deadline passed on

March 31, 2021, Murphy still had another thirty days to file a motion to

“extend the time for filing a notice of appeal”—giving Murphy until April 30,

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2021. See id. R. 4(e)(2). Utah courts grant these motions when a party shows

“good cause or excusable neglect,” id., and in assessing these motions, courts

engage in an “inquiry [that] is fundamentally equitable in nature and entails

broad discretion,” Reisbeck v. HCA Health Servs. of Utah, Inc., 2 P.3d 447, 450

(Utah 2000). Murphy contends that he did not return to his prison unit from

surgery until March 29, 2021, and that he did not receive the trial court’s denial

until “sometime after” April 1, 2021. Op. Br. at 4. But rather than filing a

motion to extend the time to appeal, Murphy waited until May 2, 2021—two

days after the appellate-extension deadline passed—to mail his § 2254 petition.

And by failing to seek an appellate extension, Murphy abandoned a state

procedure to pursue his claims. See Ward v. Medina, 502 F. App’x 780, 782–83

(10th Cir. 2012) (unpublished) (ruling that state prisoner failed to exhaust state

remedies when he didn’t move to file a late appeal). As a result, Murphy has

not shown cause to excuse his failure to seek an appellate extension, and we

cannot excuse his procedural default.

Murphy has not argued that he is actually innocent, and so he has not

shown a fundamental miscarriage of justice. See Magar, 490 F.3d at 820. Thus,

reasonable jurists would not debate the district court’s procedural ruling, and

we deny Murphy a COA.

II. IFP Motion

Murphy also requests to proceed IFP. We grant IFP motions when

appellants show (1) “a financial inability to pay the required filing fees” and

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(2) “the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991) (citations omitted). Murphy has shown an inability to

pay through his financial affidavit. And Murphy has presented a nonfrivolous

argument on appeal. For these reasons, we grant his IFP motion. IFP status

allows Murphy to avoid paying the appellate-filing fee upfront, but he must

continue to make partial payments until he pays the fee in full. See 28 U.S.C.

§ 1915(b).

CONCLUSION

For the reasons discussed above, we deny Murphy a COA, grant his IFP

motion, and order the matter dismissed.

Entered for the Court

Gregory A. Phillips Circuit Judge