Murphy v. Perrill ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 19 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
BARTON LEE MURPHY,
Plaintiff-Appellant,
No. 97-1216
v. (Dist. of Colorado)
(D.C. No. 96-S-277)
WILLIAM PERRILL,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has unanimously determined that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Barton Lee Murphy appeals the district court’s refusal to refund partial
filing fees that Murphy paid pursuant to the Prison Litigation Reform Act of 1996
(“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996). Murphy
contends that under this court’s decision in United States v. Simmonds, 111 F.3d
737 (10th Cir. 1997), which held that the PLRA does not apply to habeas corpus
petitions, he is entitled to a refund of the filing fees he paid to appeal the denial
of his 28 U.S.C. § 2241 petition. Finding Murphy’s frivolous and malicious
contentions without merit, this court affirms.
In an apparent effort at chicanery, Murphy has failed to inform this panel
that he presented this exact issue to the panel that decided the merits of his habeas
corpus petition. In an order entered June 9, 1997, a panel of this court held as
follows:
This matter is before the court on appellant’s “Motion to
Waive filing Fees in Appeal of District Court Order that This
Circuit’s Defining A Statute is not Retroactive.” Mr. Murphy seeks
an order from this court requiring the district court to reimburse him
for monies paid towards payment of the filing fee in this appeal. He
also seeks a declaration that our opinion in United States v.
Simmonds, 111 F.3d 737 (10th Cir. 1997), is retroactive. After
reviewing Mr. Murphy’s motion, the court has determined he is not
entitled to reimbursement for payments made prior to the filing of
Simmonds. As a result of Simmonds, however, the court will vacate
the assessment of any payments following the filing of that opinion.
Mr. Murphy need not make any additional payments. This order will
stand as a supplement to the court’s original mandate.
Murphy v. Perrill, Order, No. 96-1389 (June 9, 1997).
-2-
In light of the Order set out above, this panel need not tarry long on
Murphy’s contentions. The Order entered in No. 96-1389 is the law of this case
and is not subject to relitigation by Murphy. See United States v. Monsisvais, 946
F.2d 114, 115-116 (10th Cir. 1991) (describing law-of-the-case doctrine and
noting that “it is designed to bring about a quick resolution of disputes by
preventing continued re-argument of issues already decided”). If Murphy was
aggrieved by the Order set out above, his proper avenue for relief was a petition
for rehearing, not an appeal of the district court order to a separate panel of this
court. Fed. R. App. P. 40.
The judgment of the United States District Court for the District of
Colorado denying Murphy’s request for the refund of fees was in compliance with
the mandate of this court and is therefore AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-