Murphy v. McKune, 10th Cir. (2005)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
July 7, 2005
PATRICK FISHER
Clerk
ROBERT E. MURPHY,
Petitioner - Appellant,
v.
DAVID R. MCKUNE; ROGER
WERHOLTZ,
No. 04-3289
(D.C. No. 03-CV-3169-MLB)
(D. Kan.)
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Petitioner-Appellant Robert Murphy, a pro se state prisoner, seeks a
Certificate of Appealability (COA) enabling him to appeal the district courts
denial of his 28 U.S.C. 2241 motion for habeas relief. Mr. Murphy argues his
sentence has been unlawfully executed in that (1) his conditional release date has
been prejudicially altered by an ex post facto application of a state regulation, and
(2) his sentence was unlawfully aggregated with a prior sentence that had
previously been discharged, resulting in him serving beyond his maximum term.
Because we conclude that Mr. Murphy has not made a substantial showing of the
denial of a constitutional right, 28 U.S.C. 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 483-84 (2000), we deny a COA and dismiss the appeal.
In 1980, Mr. Murphy was convicted of rape in Kansas state court and given
a five to 20 year sentence. After serving several years of this sentence, he was
released, and in 1990 he received a full and complete discharge. A little over
three years later, he was convicted of attempted rape and sentenced to three to ten
years imprisonment. Upon being transferred to the Kansas Department of
Corrections, the two sentences were aggregated resulting in a final controlling
term of eight to 30 years. Mr. Murphy then began a long and complicated review
process seeking relief from his conviction and sentence.
Initially, he filed a direct appeal, and his conviction was affirmed by the
Kansas Court of Appeals. Next, he filed a Motion for Modification of Sentence
asserting, among other things, that his sentence was unlawfully aggregated, which
was denied. In 1995, he filed his first state habeas petition claiming various
constitutional violations based on evidentiary grounds and ineffective assistance
of counsel. The state district court denied the petition and the Kansas Court of
Appeals affirmed two years later. Before the state appellate court ruled on his
state habeas petition, Mr. Murphy filed his first federal habeas petition under 28
U.S.C. 2254, but the district court denied the petition for failure to exhaust state
remedies. Immediately after his state habeas petition was denied, he again filed a
federal habeas petition under 28 U.S.C. 2254 raising the same issues he raised
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in his state habeas petition. The district court denied this second petition on the
merits, and we denied a COA and dismissed Mr. Murphys appeal. Murphy v.
Hannigan, 37 Fed. Appx. 346 (10th Cir. Feb. 15, 2002).
Mr. Murphy then filed a second state habeas petition claiming a Fifth
Amendment violation and that his conditional release date was wrongly
calculated. 1 After being heard in various state courts, his constitutional
challenges were dismissed on the merits and his calculation argument was
dismissed for failure to exhaust administrative remedies. Around this same time,
Mr. Murphy filed a 42 U.S.C. 1983 action in federal district court asserting
similar arguments. The district court similarly rejected the Fifth Amendment
claim and held that the sentence calculation argument was not properly raised
under section 1983.
During the first part of 2002, Mr. Murphy pursued administrative remedies
asserting an ex post facto argument and challenging the calculation of his
conditional release date. After being denied relief, he filed a third state habeas
petition asserting that his sentence was unlawfully aggregated, and that even if
the aggregation was lawful, his conditional release date was improperly
calculated. The petition was dismissed for lack of jurisdiction as it was not
All of the filings related to this petition do not appear to be in the record
so the exact timing and contents of this petition are less than clear.
1
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brought in the proper county. Rather than appeal the decision or file in the proper
county, Mr. Murphy then filed an original habeas action in the Kansas Supreme
Court again asserting ex post facto and conditional release calculation arguments,
but omitting his unlawful aggregation claim. The petition was summarily denied.
In early 2003, Mr. Murphy revived his aggregation challenge in a Motion to
Correct Illegal Sentence. In response, the state district court wrote him a letter
indicating that while the courts records showed his 1980 conviction was
completed in 1990, it lacked jurisdiction to consider the motion as it was filed in
the wrong county. Less than two months later, Mr. Murphy filed the present
federal habeas petition under 28 U.S.C. 2241. He again asserted various
constitutional violations resulting from the calculation of his conditional release
date, including an ex post facto argument, but he only raised his unlawful
aggregation claim in response to the States brief.
Noting that Mr. Murphy was likely in violation of various procedural
requirements, the district court rejected his conditional release arguments,
including the ex post facto claim, on the merits and held that the unlawful
aggregation argument was procedurally barred. Mr. Murphy now seeks from this
court a COA allowing him to challenge the resolution of his ex post facto and
unlawful aggregation claims.
For this court to grant a COA, Mr. Murphy must make a substantial
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showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). Where the district court denies a
habeas petition on the merits, a COA is properly granted where the petitioner
demonstrate[s] that reasonable jurists would find the district courts assessment
of the constitutional claims debatable or wrong. Slack, 529 U.S. at 484.
Similarly, where the district court denies the petition on procedural grounds a
COA is properly granted where jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling. Id.
The district courts denial of Mr. Murphys ex post facto claim is not
reasonably debatable. Mr. Murphy claims the Kansas Department of Corrections
unlawfully applied a regulation enacted after his sentence was imposed that
adversely impacted his conditional release date. However, as the district court
noted, his conditional release date was calculated when he was transferred into
the Departments custody, well before the regulation was amended, and has
remained virtually unchanged since that time. Indeed, the one minor alterationa
one month extension imposed as a disciplinary measure has not been
challenged.
Likewise, the district courts holding that the unlawful aggregation claim is
-5-
procedurally barred is not reasonably debatable. This court may not consider
issues raised in a habeas petition that have been defaulted in state court on an
independent and adequate procedural ground[] unless the petitioner can
demonstrate cause and prejudice or a miscarriage of justice. Thomas v. Gibson,
218 F.3d 1213, 1221 (10th Cir. 2000) (alteration in original) (citation omitted).
Mr. Murphy raised his unlawful aggregation argument no less than three times
during the course of his state court proceedings, and each time he received an
unfavorable judgment. However, he failed to seek further review in the Kansas
appellate courts of any of these rulings. Thus, he did not exhaust his available
state remedies, which, due to the passage of time, has resulted in a procedural
default. OSullivan v. Boerckel, 526 U.S. 838, 848 (1999); see also Montez v.
McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding exhaustion requirement
applies to 2241 petitions as well as to 2254 petitions).
Mr. Murphy concedes that his claim is procedurally barred, but insists that
he comes within the miscarriage of justice exception. This exception seeks to
balance the societal interests in finality, comity, and conservation of scarce
judicial resources with the individual interest in justice that arises in the
extraordinary case. Schlup v. Delo, 513 U.S. 298, 324 (1995). And in light of
these interests, the Supreme Court has explicitly tied the miscarriage of justice
exception to the petitioners innocence. Id. at 321. Mr. Murphy makes no claim
-6-
of factual innocence. Rather, he simply contends his otherwise lawful sentence

was improperly calculated. As such, the miscarriage of justice exception to
procedural bar is not properly applied in this case. Id. at 324 (The threat to
judicial resources, finality, and comity posed by claims of actual innocence is thus
significantly less than that posed by claims relating only to sentencing.).
Accordingly, we deny COA, deny all pending motions, and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.

Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

of factual innocence. Rather, he simply contends his otherwise lawful sentence

Entered for the Court

Paul J. Kelly, Jr.

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