Murphy v. Guerrero

OCR transcription for search; preserved printed pages are authoritative

Case 4:25-cv-03775 Document17_ Filed 06/30/26 in TXSD Page1of 14

United States District Court
Southem District of Texas

ENTERED
June 30, 2026
IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARCUS LEVAIL MURPHY, §
§
Petitioner, §
§

Vv. $ CIVIL ACTION NO. H-25-3775
§
ERIC GUERRERO, $
$
Respondent. $

MEMORANDUM OPINION AND ORDER

This case is before the Court on Petitioner Marcus Levail
Murphy’s petition for a writ of habeas corpus, Respondent Eric
Guerrero’s Answer, and Murphy's Response. Having carefully
considered the petition, the answer, the response, all the

arguments and authorities submitted by the parties, and the

relevant record, the Court is of the opinion that Murphy’s
petition should be denied.
I. Background
Texas's Fourteenth Court of Appeals summarized the
evidence:
In the weeks leading up to her death, complainant
Ebony Harris was romantically involved with [Murphy],

who was then a member of the U.S. Navy living in the
area around Chesapeake, Virginia. Less than a week

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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after learning she was pregnant with twins, Harris was
found murdered in her Houston apartment. She had been
strangled and repeatedly stabbed. There were defensive
wounds on her hands, and [Murphy]'s DNA was under her
fingernails.

kok O*

The evidence presented at trial showed that at around
2:00 a.m. on Thursday, February 19, 2015, Ebony Harris
texted [Murphy], “OMG. I'm so scared.” The response
message from [Murphy]'s phone asked if Harris was
okay. She answered, “No. I'm pregnant with twins.”
[Murphy], who had been dating Harris, lived at that
time in Virginia with his wife and their
children--also twins.

[Murphy] bought two pairs of gloves at a Wal-Mart in
Danville, Virginia on the night of February 23, 2015,
then drove to Chariotte International Airport,
arriving at around 1:00 a.m. on February 24th.
[Murphy] and his cousin then flew together to Houston
with a layover in Detroit. They arrived at Bush
Intercontinental Airport in Houston shortly after
11:00 a.m.

Data extracted from [Murphy]'s cell phone showed that
[Murphy] arrived in the area around Harris's apartment
at 11:56 a.m., about twenty minutes after Harris ended
a phone call with her mother. There is no further
user-generated activity from Harris's phone after this
time.

Starting at around 12:40 p.m., there were incoming and
outgoing calls between [Murphy]'s cell phone and a4
taxi service. An hour later, he arrived back at
Intercontinental Airport. At 3:13 p.m., [Murphy!) and
his cousin boarded a flight back to Charlotte,
Virginia by way of Atlanta.

Harris failed to appear for work at 2:00 p.m. as
scheduled, and she did not contact her employer or her
half-sister, who was babysitting Harris's
four-year-old son.

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The next day, that is, Wednesday, February 25, 2015,
Harris's naked body was found face down in the master
bedroom by a pest exterminator who had entered to
treat the apartment. He informed the property manager,
who phoned the police.

The first police officer arrived at around 2:30 p.m.
and secured the scene. Sabrina Holden, a member of the
Crime Scene Unit, photographed and diagrammed the
scene. Police discovered Harris's phone under the bed
in the master bedroom, where a struggle appeared to
have taken place and where Harris's body was found.
Police noted that two knives were missing from the
knife block in the kitchen, and they found a knife in
a kitchen cabinet.

Also on that day, [Murphy}'s phone shows that he
searched Google for “Woman found in Greenspoint
apartment,” “Woman found dead in apartment in Houston
today,” and “February 24th, Houston woman found dead
in apt.”

Officer Richard Ridel, who was then working as a
homicide detective, arrived at Harris's apartment at
around 3:45 that afternoon. The apartment showed no
signs of forced entry, which Ridel interpreted to mean
that Harris had opened her door willingly. The
apartment complex had surveillance cameras covering
the apartment's front door, and although Ridel
arranged to meet with the property's manager to
recover the film, Ridel forgot to do so, and the film
was overwritten after a week.

Meanwhile, on Thursday, February 26th, [Murphy] 's
phone showed that he searched the internet for
following:

* “Can police retrieve deleted text messages”;

* “Can police pull flight manifests’;

* “Can police pull travel records from airport”;

* “Can police pull flight records”;

* “Ebony Harris, Houston, Texas”; and

* “Woman found in Greenspoint.”

Although Ridel initially assumed that Harris was

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murdered on February 25th--the day her body was
found~-his investigation shifted to focus on February
24th after he learned that this was the date Harris
last used her cell phone.

Harris's mother identified [Murphy] and five other men
as people that Harris had been dating before her
death. Ridel interviewed several of these men, who
voluntarily gave Ridel buccal swabs of their DNA.
Comparison of their DNA with DNA taken from Harris's
twin embryos later revealed that Marlon Townsend, not
[Murphy], fathered the twins.

Ridel obtained historical cell-tower data from that
date for the men he was investigating. He also
obtained flight records and [Murphy]'s credit-card
records. The credit-card records showed [Murphy]'s
purchase of two pairs of gloves in Virginia, and the
cell-tower data and flight records showed [Murphy]'s
movements, described above. DNA analysis of some of
Harris's fingernail scrapings showed DNA of unknown
origin, but for one particular scraping, the
likelihood that the DNA present came from Harris,
Harris's four-year-old son, and [Murphy] was “90.1
quattucrdecillion times more likely than that the DNA
was From Harris and two unknown unrelated
individuals.”

In a recorded phone interview with Ridel, [Murphy]
denied being in Houston at all during the week that
Harris was murdered, and the calls and texts between
himseif and Harris before her death had been deleted
from his phone. That evidence remained, however, on
Harris's phone,

Murphy _v. State, No. 14-22-00836-CR, 2024 WL 2284326, at *1-2

(Tex. App. May 21, 2024), pet. ref’d (Sept. 25, 2024).

A jury found Murphy guilty of capital murder for the

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murders of Harris and her unborn child.1 He was sentenced to
life imprisonment without the possibility of parole.

II. Applicable Legal Standards

This federal petition for habeas relief is governed by the
applicable provisions of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 335-

36 (i997). Under the AEDPA federal habeas relief based upon
claims that were adjudicated on the merits cannot be granted
unless the state court’s decision (1) “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or (2) “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d

698, 700 (5th Cir. 1999).

The AEDPA precludes federal habeas relief on factual issues
unless the state court’s adjudication of the merits was based on
an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. ee 28 U.S.C.

While the evidence showed that Harris was pregnant with twins, the

indictment charged Murphy with the murder of Harris “and her unborn child.”
See Docket Entry No, 13-45 at 116.

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§ 2254(d) (2); Hill v. Johnson, 210 F.3d 481, 485 (Sth Cir.

2000). The state court’s factual determinations are presumed
correct unless rebutted by “clear and convincing evidence.” 28

U.S.C. § 2254(e)} (1); see also Jackson v. Anderson, 112 F.3d 823,

824-25 (5th Cir. 1997).
III. Analysis
Murphy raises four claims of ineffective assistance of
counsel. To prevail on a claim for ineffective assistance of
counsel, Murphy
mist show that . . . counsel made errors so

serious that counsel was not functioning as
the “counsel” guaranteed by the Sixth

Amendment. Second, the [petitioner] must
show that the deficient performance
prejudiced the defense. This requires

showing that counseli’s errors were so serious
as to deprive the defendant of a fair trial,
a trial whose resuit is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984}. In order to

prevail on the first prong of the Strickland test, Murphy must
demonstrate that counsel’s representation feil below an objective
standard cf reasonableness. Id. at 687+88. Reasonableness is
measured against prevailing professional norms, and must be
viewed under the totality of the circumstances. Id. at 688.
Review of counsel’s performance is deferential. Id. at 689. in

assessing prejudice, “Strickland asks whether it is reasonably

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likely the result would have been different,” if not for

counsel’s deficient performance. Harrington v. Richter, 562 U.S.

86, 111 (2012) (internal quotation marks omitted).

A. Failure to Hire Expert Witness

Murphy first contends that his counsel rendered ineffective
assistance by failing to hire Dr. Greg Hampikian as a DNA expert.
Murphy attaches to his petition emails between Dr. Hampikian and
Murphy’s counsel discussing the possibility that Dr. Hampikian
would be retained. He further notes that the trial court
approved $15,000 for retention of an expert. He speculates that
Dr. Hampikian would have testified that Murphy’s DNA found under
the victim's fingernails could have been transferred from
Murphy’s sweatshirt, which the victim was seen wearing, rather
than during a struggle. He identifies no such statement from Dr.
Hampikian.

For a claim of uncalled witnesses to be meritorious, a
habeas petitioner must show: (1) the testimony of the uncalled
witnesses would have been favorable to him, and (2) the uncalled
witness would have so testified during the proceeding. Alexander

v. McCotter, 775 F.2d 595, 605 (Sth Cir.1985). Further,

“complaints of uncalled witnesses are not favored, because the

presentation of testimonial evidence is a matter of trial

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strategy and because allegations of what a witness would have

testified are largely speculative.” Buckelew v. United States,
575 F.2d 515, 521 (Sth Cir.1978).

While Murphy shows that his counsel contacted Dr. Hampikian,
he makes no showing that Dr. Hampikian would have given testimony
supporting Murphy’s theory that his DNA might have transferred to
the victim from a sweatshirt. Moreover, on cross examination,
defense counsel got the State’s DNA expert to concede that
Murphy’s DNA could have ended up under the victim’s fingernails
through innocuous means. See Docket Entry No. 13-11 at 139-43.

Even if the Court were to assume that failing to retain Dr.
Hampikian constituted deficient performance by counsel, Murphy
fails to demonstrate Strickland prejudice. Presentation of
another hypothetical innocuous explanation for how Murphy’s DNA
ended up under the victim’s fingernails would not eliminate the
likelihood of a struggle in light of the evidence of Murphy’s
travel to and from Houston, cellphone data placing him near the
murder scene at the time of the murder, and Murphy’s
incriminating behavior, including purchasing gloves and searching
the internet for information about the murder and the
availability of travel and cellphone evidence to the police. [In

light of all the evidence, Murphy's sweatshirt theory is unlikely

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to have changed the outcome of the trial.

B. Failure te Object to Comments About DNA

During the State’s opening statement, the prosecutor argued
that the evidence would show that the victim’s hands were cut
because she put up a struggle. Docket Entry No. 13-10 at 22. A
short while later, the prosecutor stated that evidence would show
that Murphy’s DNA was recovered from under the victim's
fingernails “which proves that he had contact with her and most
likely a struggle.” Id. at 24. Murphy argues that counsel was
ineffective for not cbhjecting to this statement.

It is not clear that the statement was objectionable: The
evidence adduced at trial did show that Murphy’s DNA was found
under the victim’s fingernails, and the condition of her hands
strongly suggested that she struggled with her attacker. To the
extent that Murphy contends the statement was improper argument,
he cannot show prejudice.

As noted above, the non-DNA evidence of Murphy’s guilt was
extensive and damning. An argumentative statement that was borne
out by evidence, even if cbjectionable, did not swing the balance
of the trial; even if counsel objected, there is littie
likelihood that it would have changed the outcome. This claim is

therefore without merit.

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Cc. Failure to Challenge Admissibility of DNA Evidence

Murphy next argues that counsel should have moved to
suppress the DNA evidence and sought a hearing under Kelly v,

State, 824 S.W.2d 568 (Tex, Crim. App. 1992) (setting out

standards for the admissibility of expert scientific evidence).
Murphy contends that there was no way for the expert to determine
how his DNA wound up under the victim’s fingernails, and that the
evidence was therefore unreliable.

Murphy offers nothing but his conjecture in support of this
theory. He therefore fails to demonstrate any likelincod that
such objections would have been successful. Counsel was not
deficient for failing to raise meritless objections.

Moreover, even if the objections had been made and
sustained, Murphy cannot show prejudice. As discussed above, the
non-DNA evidence of Murphy’s guilt is overwhelming. There is
little doubt that Murphy would have been convicted even if no DNA
evidence had been presented. Murphy therefore fails to show
Strickland prejudice.

Dd. The Cumulative Effect of Ineffective Assistance

Finally, Murphy argues that, even if none of his individual
claims of ineffective assistance of counsel provides grounds for

relief, the cumulative effect of these instances of aliegedly

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deficient performance do. However, in the absence of any error,
there is nothing to cumulate.

Even if counsel were deficient in any of the ways that
Murphy claims, he cannot show prejudice. Murphy’s claims all
revolve around the DNA evidence. As recounted above, however,
the non-DNA evidence showed that: Murphy learned that Harris was
pregnant with twins; bought two pairs of gloves; booked two round
trip tickets from Charlotte to Houston; flew to Houston on the
day of the murder; was tracked by celiphone data to the victim’s
apartment complex around the time of the murder; flew back to
Charlotte the same day, after the murder; deleted potentially
incriminating texts from his cellphone; conducted internet
searches about the murder and about the ability of the police to
track his air travel and retrieve the deleted texts; and lied to
the police about his presence in Houston on the day of the
murder. In addition, the police were able to retrieve some of the
incriminating texts from the victim’s cellphone. Even if aii DNA
evidence and all mention of DNA evidence had been suppressed, the
evidence of Murphy’s guilt was so overwhelming that the result of
the trial would have been the same. He therefore cannot show

Strickiand prejudice in his individual claims or cumulatively.

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IV. Certificate of Appealability

Murphy has not requested a certificate of appealability

(“COA”), but this Court may determine whether he is entitled to

this relief in light of the foregoing ruiings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly
lawful for district court’s [sic] to deny COA sua sponte. The

statute does not require that a petitioner move for a COA; it
merely states that an appeal may not be taken without a
certificate of appealability having been issued.”) A petitioner
may obtain a COA either from the district court or an appellate
court, but an appellate court will not consider a petitioner’s
reguest for a COA until the district court has denied such a

request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.

1988); see also Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997)

(“[T]he district court should continue to review COA requests
before the court of appeals does.”). “A plain reading of the
AEDPA compels the conclusion that COAs are granted on an issue-
by-issue basis, thereby limiting appellate review to those issues

alone.” Lackey v. Johnson, 116 F.3d 149, 151 {Sth Cir. 1997).

A COA may issue only if the petitioner has made a
“substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253{c){2); see also United States v. Kimler, 150

~[L?-

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F.3d 429, 431 (5th Cir. 1998). A petitioner “makes a substantial
showing when he demonstrates that his application involves issues
that are debatable among jurists of reason, that another court
could resolve the issues differently, or that the issues are
suitable enough to deserve encouragement to proceed further.”

Hernandez v. Johnson, 213 F.3d 243, 248 (Sth Cir. 2000). The

Supreme Court has stated that:

Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional
claims debatable or wrong. The issue becomes somewhat
more complicated where . . . . the district court
denies a habeas petition on procedural grounds. We hold
as follows: When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that
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.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This Court has carefully considered Murphy’s petition. The
Court finds that reasonable jurists would not find it debatable
that Murphy’s claims are without merit. Murphy thus fails to
make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253{c)(2). The Court therefore concludes

~[3=

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that Murphy is not entitled to a certificate of appealability.

Vv. Conclusion and Order

For the foregoing reasons, the Petition is DENIED and this
action will be dismissed with prejudice. No certificate of
appealability shall issue.

The Clerk shall notify all parties and provide them with a
true copy of this Order.

SIGNED at Houston, Texas, on this the 30th day of June,

Soe

“ SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

2026.

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