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Murphy v. Kirkman

United States District Court, D. Idaho

September 28, 2017

AMANDA GENTRY, Respondent.


          Hon. Ronald E. Bush United States Magistrate Judge

         Pending before the Court in these consolidated cases is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Alisha Ann Murphy (“Petitioner” or “Murphy”), challenging Petitioner's Twin Falls County conviction of first-degree murder. (Petition, Dkt. 1 (consol. case).) Respondents have filed a Motion for Summary Dismissal, arguing that the Petition is barred by the one-year statute of limitations. (Dkt. 21 (lead case).) The Motion is now ripe for adjudication.

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 17.) See Fed. R. Evid. 201; Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). The Court has also reviewed Petitioner's medical records lodged on October 28, 2015 (Dkt. 9), as well as the attachments to the parties' submissions in this case.

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 22.) Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting the Motion and dismissing this case with prejudice as untimely.


         The facts underlying Petitioner's conviction have been explained by the Idaho Supreme Court as follows:

In the underlying criminal case, Murphy was convicted of first degree murder. The state's evidence indicated that on the night of December 18, 1995, Murphy entered the room of her children and began choking her seven-year-old son, Jimmy, with a belt. James, her husband, intervened and they began to argue. The argument continued in the kitchen, and Murphy knocked her husband unconscious with a cast-iron frying pan. Murphy then obtained a gun from a bedroom and returned to the kitchen. According to Jimmy's trial testimony, Jimmy observed his mother kneeling over his father's motionless body and placing a gun into James' hand. She appeared to be pointing the gun in the direction of his father's face. Jimmy ran back to his room and then he and his four-year-old sister, Olive, heard a loud noise. Murphy gathered the children and they walked through the kitchen where James' body was lying on the floor, exited the house and drove away.
It is undisputed that Murphy and her husband were involved in a turbulent relationship marked by excessive alcohol use and physical violence. Both were extremely intoxicated on the night in question. Murphy always maintained her innocence, claiming her husband committed suicide. According to Murphy, as the fight escalated she grabbed her two children and fled the house as she had done so many times before. This version of the events was corroborated by Jimmy's initial statements to the police that he saw his father waving to them from the doorway of the house as they drove away. Murphy also insisted that after she left, her husband recorded a telephone message on the answering machine of Norma Jo Robinson, Murphy's mother, proving that he was still alive. Finally, the autopsy report prepared at the time by pathologist, Dr. Kerry Patterson, listed the manner of death as indeterminate.
Several years later, Jimmy changed his story. Jimmy said that his mother had threatened to hurt him if he did not tell the police about seeing his father waving at the door. With this additional evidence, Murphy was charged with the murder of her husband. In December 1999, before the grand jury, the state's expert, Dr. Patterson, testified consistent with his autopsy report, that the manner of death was indeterminate.
Murphy's trial counsel advised her to use a “battered woman syndrome” defense, which she rejected because she refused to admit to committing the fatal act. Murphy also rejected her counsel's recommendation to accept a reduced voluntary manslaughter charge offered by the state. Then, on the eve of the trial-in September of 2000, more than four years after James' death-Dr. Patterson, changed his opinion about the manner of death from “indeterminate” to “homicide” after examining for the first time the gun involved and the gunshot residue report. Dr. Patterson's position at trial regarding the manner of death was contrary to his autopsy report rendered three days after the death of James and contrary to his testimony before the grand jury. Defense counsel moved for a mistrial but did not request a continuance based on this change of position. At the conclusion of the trial, the jury returned a verdict of guilty.

(State's Lodging F-8 at 1-3 (footnote omitted).) Petitioner was sentenced to life imprisonment without the possibility of parole. On January 8, 2003, the Idaho Court of Appeals affirmed Petitioner's conviction and sentence. (State's Lodging B-4.) The Idaho Supreme Court denied review and issued its remittitur on March 19, 2003. (State's Lodging B-7, B-8.)

         Petitioner filed her initial petition for state post-conviction relief on March 8, 2004. (Dkt. C-1 at 4-8.) See Munson v. State, 917 P.2d 796, 800 (Idaho 1996) (mailbox rule). The Idaho district court summarily denied the petition. (State's Lodging C-1 at 216-32.) The Idaho Court of Appeals affirmed as to most of Petitioner's claims, but reversed and remanded with respect to her claim that trial counsel rendered ineffective assistance by failing to retain a pathologist, as well as a number of claims regarding which the district court had not given proper notice of the grounds for dismissal. (State's Lodging D-8.)

         The trial court held further proceedings, including an evidentiary hearing, and once again dismissed Petitioner's initial post-conviction petition. (State's Lodging E-1 at 147-68.) The Idaho Court of Appeals affirmed the trial court following remand. (State's Lodging F-4.) The Idaho Supreme Court denied review. (State's Lodging F-8.) The remittitur was issued on August 10, 2009. (State's Lodging F-9.)

         On July 10, 2008, while Petitioner's appeal following remand was still pending, Petitioner filed a successive post-conviction petition in the Idaho district court. (State's Lodging G-1 at 9-15.) That court denied Petitioner's motion for counsel and dismissed the successive petition. (Id. at 110-26.) The court also denied Petitioner's motion for reconsideration, concluding that Petitioner had not satisfied the “sufficient reason” requirement for filing a successive petition. (Id. at 171-80.) See Idaho Code § 19-4908 (“All grounds for relief available to an applicant under this act must be raised in his original . . . application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived . . . may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original . . . application.”).

         On appeal, the Idaho Court of Appeals affirmed the dismissal of most of the claims in the successive petition, but reversed as to Petitioner's claim that trial counsel was ineffective in failing to obtain certain telephone records. (State's Lodging H-13.) With respect to this claim, the court of appeals held that Petitioner had presented “at least the possibility of a valid claim warranting appointment of counsel.” (Id. at 16.)

         The Idaho Supreme Court granted review of the Idaho Court of Appeals' decision, took additional briefing, and reinstated the dismissal of all of Petitioner's claims. (State's Lodging H-14 through H-19.) The state supreme court disagreed with the court of appeals' decision that the successive petition stated at least the possibility of a valid claim of ineffective assistance regarding the telephone records. The court held that ineffective assistance of initial post-conviction review counsel is not a “sufficient reason” for a successive petition, overruling Palmer v. Dermitt, 635 P.2d 955 (Idaho 1981). (State's Lodging H-19 at 2.) Therefore, Petitioner's claims were subject to the successive petitions bar of Idaho Code § 19-4908. The Idaho Supreme Court later denied Petitioner's request for rehearing, and the remittitur issued on July 1, 2014. (State's Lodging H-22, H-23.)

         In August 2014, Petitioner filed, in this Court, an application to proceed in forma pauperis, as well as a motion for appointment of counsel “to assist this petitioner in her federal habeas corpus.” (Dkt. 3 (lead case) (capitalization omitted).) Petitioner stated that she is visually impaired, having been diagnosed with pattern retinal dystrophy, and has difficulty reading and writing. Petitioner did not file a habeas petition at that time.

         The Clerk of Court opened a habeas action and conditionally filed Petitioner's in forma pauperis application and motion for counsel. The Clerk issued an Order of Conditional Filing, which stated in relevant part:

NOW THEREFORE IT IS HEREBY ORDERED that your request that your case be filed and issued a case number is conditionally granted. Please be advised that you cannot proceed with your case until the Court issues an order making a final determination on your in forma pauperis application. If you are a prisoner, you must also wait until the Court has authorized you to proceed with your case in an initial review order, even if you have paid the filing fee.

(Dkt. 4.)

         The Court addressed Petitioner's preliminary filings in an Order dated November 3, 2014. (Dkt. 6.) The Court concluded that Petitioner had “provided insufficient factual information about her condition and abilities” for purposes of her request for counsel because she relied only on “an old medical record from . . . 2010, which does not provide a layperson with adequate information to discern Petitioner's limitations on her ability to read.” (Id. at 1.) The Court also lacked information on the prison's access-to-courts delivery system with respect to visually-impaired inmates. Therefore, the Court allowed Petitioner to “submit a current medical record or report that clarifies the status of her condition.” (Id.) The motion for appointment of counsel was deemed moot pending Petitioner's submission of such supplemental materials. Petitioner's in forma pauperis application was granted.

         In the November 2014 Order, the Court expressly warned Petitioner that the statute of limitations for Petitioner's federal habeas petition was continuing to run and that her in forma pauperis application and motion for appointment of counsel did not affect the running of that statute:

Petitioner is informed that her one-year federal statute of limitations remains running, and has not been tolled as a result of her request for counsel. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055 (9th Cir. 2004); Woodford v. Garceau, 538 U.S. 202, 210 (2003) (a case does not become “pending” until an actual application for habeas corpus relief is filed in federal court). It would be wise for Petitioner to seek help from the prison paralegal to prepare a simple petition on the prison's federal habeas corpus form that includes every federal claim that she exhausted or attempted to exhaust in state court and file it as soon as possible. Such a petition can be amended at a later date, but later claims must relate back to the claims in the original petition if the later claims are added after the original statute of limitations period has expired. Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013).

(Id. at 2 (emphasis added).) As seen by this statement, Petitioner was specifically notified that, to safeguard the timeliness of her eventual petition, she should submit an actual petition “as soon as possible.” The Court gave this warning to Petitioner despite the fact that it was not obligated to do so. See Pliler v. Ford, 542 U.S. 225, 231-34 (2004).

         A copy of the Court's November 3, 2014 Order was sent to L. LaMont Anderson, Deputy Attorney General and counsel for Respondents, “for the purpose of notifying the prison of Petitioner's need for access-to-the-courts help in preparing a petition.” (Id.)

         It does not appear that IDOC took any action as a result of receiving notice of the Petitioner's situation. Petitioner attempted to obtain a copy of her medical records to submit to the Court for purposes of renewing her request for appointment of counsel. Petitioner submitted written requests to prison staff for the information, but was subjected to “a confusing and tedious process” to obtain that information. (Dkt. 8 at 1.) For example, prison staff replied to one of Petitioner's requests in writing that was “so light as to be unreadable, ” but the reply “was sent to [Petitioner]-who had already mentioned she had a visual impairment-anyway.” (Id.) Moreover, prison staff informed Petitioner that they would not release medical information without “a signed consent from the lawyer and [they would] release records to the lawyers only.” (Id.) As the Court has noted,

This reply makes little sense in reference to Petitioner's specific request for information. The prison is willing to release records to a lawyer, but not to a federal judge. The prison requires the prisoner to have a lawyer to request the records, even though the prisoner said that the records were needed for the purpose of qualifying for appointment of a lawyer.

(Id.) Other replies to Petitioner's requests were nonresponsive.

         Therefore, on October 9, 2015-approximately eleven months after its Order on Petitioner's motion for appointment of counsel-the Court instructed IDOC to provide the Court with certain information for purposes of determining “whether a lawyer is needed to help Petitioner prepare her habeas corpus petition, or whether Petitioner can prepare it herself through IDOC access-to-courts procedures.” (Id. at 4.) The Court noted that the “IDOC process (if it can be called a process) has wasted several hours of Petitioner's time, several hours of the Court's time, and many months of litigation time.” (Id.)

         Counsel for the IDOC responded to the Order and certified that the sealed medical records provided to the Court were sent to Petitioner on November 5, 2015. Nonetheless, Petitioner did not renew her request for appointment of counsel based on her medical records ...

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