Murphy v. Hannigan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 15 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT E. MURPHY,
Petitioner-Appellant, No. 01-3288
v. (D.C. No. 98-CV-3226-DES)
ROBERT D. HANNIGAN, DAVID R. (D. Kansas)
MCKUNE, and CARLA STOVALL,
Attorney General of Kansas,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered
submitted without oral argument.
Robert E. Murphy, a state prisoner proceeding pro se, requests a certificate
of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
corpus petition. Mr. Murphy was convicted of attempted rape and sentenced to
three to ten years’ imprisonment. His conviction was affirmed on direct appeal.
In his habeas petition, Mr. Murphy contends that (1) the prosecution knowingly
used perjured testimony and manufactured evidence, (2) the trial court improperly
excluded evidence, and (3) his counsel provided ineffective assistance. The
district court denied the petition. We have jurisdiction under 28 U.S.C. § 1291and, for the reasons set forth below, deny the application for a COA and dismiss
the appeal.
To qualify for a COA, a defendant must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Murphy may make
this showing by demonstrating that the issues raised are debatable among jurists,
that a court could resolve the issues differently, or that the questions raised
deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000).
Mr. Murphy claimed on direct appeal that the evidence was insufficient and
the State failed to prove the requisite intent. The Kansas Court of Appeals
affirmed his conviction, and the Kansas Supreme Court denied review. These
issues are not before this court.
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In his state post-conviction proceedings, Mr. Murphy alleged the grounds
raised in his § 2254 petition. The state court held an evidentiary hearing and
concluded that Mr. Murphy had failed to demonstrate any violation of his rights.
“In reviewing the denial of a habeas corpus petition, we review the district
court’s factual findings under a clearly erroneous standard, and its legal
conclusions de novo,” keeping in mind that “our review of the state court’s
proceedings is quite limited.” Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.
1999). The district court, in a thorough memorandum and order, considered each
of Mr. Murphy’s claims on the merits and concluded that Mr. Murphy could not
demonstrate that the Kansas
state court had reached a conclusion opposite to that reached by the
Supreme Court on a question of law, decided the case differently
than the Supreme Court has decided a case with a materially
indistinguishable set of facts, or unreasonably applied the governing
legal principle to the facts of the petitioner’s case.
Rec. doc. 29, at 2 (dist. ct. order filed on Aug. 10, 2001, at 2) (citing Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)).
We agree with the district court. Nothing in Mr. Murphy’s briefing nor the
record on appeal calls into question the soundness of the district court’s
conclusions. We do not find it debatable that the district court erred in its
assessment. Therefore, for substantially the same reasons set forth in the district
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court’s memorandum and order, we DENY petitioner’s application for a COA,
and DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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