United States v. Murphy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-10601
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES HARDIN MURPHY, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:91-CR-376)
_________________________
April 14, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Charles Murphy appeals the denial of his
motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255,
claiming ineffective assistance of counsel and
prosecutorial misconduct. We affirm.
I.
On September 26, 1991, a clean-shaven
male entered the Southwest Savings Bank,
Dallas, Texas, demanded money at gunpoint
from tellers Garrett and Alexander,1 and
absconded with $5,794. Garrett and
Alexander gave detailed descriptions of the
robber. Alexander also identified a .38 caliber
pistol, which was recovered, approximately a
month later, from a Mercury Sable automobile
driven by Murphy, as either the same weapon
or identical to the one brandished at her during
the robbery.
Darryl Neff, a bank customer, observed the
robber leave the bank and enter a blue Honda.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
1 These facts are taken almost verbatim from
our opinion on Murphy’s direct appeal. See
United States v. Murphy, 996 F.2d 94 (5th Cir.
1993).

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2
Later on the day of the robbery, the car was
recovered a few blocks from the bank. Its
ignition had been damaged so that it could be
operated without a key. A police investigator
testified that the damage to the ignition could
have been accomplished with a dent puller.
On October 3, 1991, a clean-shaven male
entered the United Savings Bank, Dallas,
Texas, approached one of the tellers, and
robbed the teller at gunpoint using a .38
caliber pistol. Ms. Irvin, who was in the next
teller’s booth, gave a detailed description of
the robber. She observed the robber leave the
building and enter a tan car. Before he exited,
she activated her surveillance camera. Some
of the money taken during the second robbery
contained an electronic tracking device
concealed in a cutout of the center of some of
the bills.
A light colored Honda was found
approximately one block from the United
Savings Bank shortly after the robbery. Its
ignition had been altered in a manner similar to
that of the blue Honda. On the same day as
the first robbery, a red Honda was stolen from
a location close to Southwest Savings Bank.
It was found after the second robbery, on
October 5, 1991, located around the corner
from Murphy’s residence. The ignition had
been removed in a manner similar to that of
the other two cars. Found in the vehicle was
a photograph given to Murphy by a friend, a
beer can with Murphy’s fingerprint on it, a
tracker dollar bill with the center removed, and
a bag containing assorted screwdrivers, pliers,
and a dent puller. None of the items was in
the vehicle before its theft.
Approximately one month later, a police
officer made a routine traffic stop of a
Mercury Sable near Cap City, Texas. Murphy
was driving, and Randy Floyd was a front seat
passenger. While the officer was performing
a license and warrant check, Floyd drove the
Sable away, leaving Murphy by the roadside.
The officer pursued and overtook Floyd a
short distance down the road. Murphy fled on
foot but was located and arrested the next day.
The Sable contained a rental agreement in
Murphy’s name, a .38 caliber short barrel
revolver that matched the one used in both
robberies, a police scanner with a book of
police frequencies, a collection of tools
(including a dent puller), a pair of sunglasses,
and a bloody syringe located on the drivers
side of the car. Richard Crum, an FBI agent
who specialized in firearms and tool mark
identification, testified that the tool marks on
the ignitions of the blue and tan Hondas could
have been made with some of the tools found
in the red Honda or the Sable.
Floyd, who had known Murphy for ten or
more years, identified him as the robber
depicted in the surveillance photos. Floyd
further testified that Murphy offered him
$1,000 to rent a home for Murphy in Floyd’s
name and that Murphy instructed him to drive
off in the Sable when the two men were
stopped.
Several witnesses of the two robberies
identified Murphy as the robber of the two
banks. Murphy was convicted of two counts
of robbery of a financial institution in violation
of 18 U.S.C. §§ 2113(a) and (d) and two
counts of carrying a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c).
II.
Murphy alleges six instances of ineffective
assistance of counsel and two instances of
prosecutorial misconduct (knowingly using
perjured testimony and knowingly withholding
exculpatory identification evidence). The
district court rejected Murphy’s claims of
ineffective assistance on the merits and found
he was procedurally barred from raising his
claims of government misconduct.2
We review ineffective assistance claims
under the two-prong standard articulated in
Strickland v. Washington, 466 U.S. 668
(1984). We have discussed the first prong as
follows:
2 Murphy filed his § 2255 motion before the
effective date of the AEDPA, so he needs no
certificate of appealability. See United States v.
Carter, 117 F.3d 262, 264 (5th Cir. 1997).

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To obtain relief, a criminal defendant
must first demonstrate that counsel's
performance was deficient. . . . The
proper standard for measuring counsel’s
performance under the first prong of
[Washington] is reasonably effective
assistance. That is, the defendant must
show that counsel’s representation fell
below an objective standard of
reasonableness. Our scrutiny of
counsel’s performance must be highly
deferential, and we must make every
effort to eliminate the distorting effects
of hindsight. . . . Under [Washington],
there is a strong presumption that
counsel’s conduct falls within the wide
range of reasonable professional
assistance.
Motley v. Collins, 18 F.3d 1223, 1226 (5th
Cir. 1994) (internal citations and quotation
marks omitted).
The second Washington prong requires the
defendant to demonstrate that counsel’s
deficient performance prejudiced the defense:
To satisfy the prejudice prong of
[Washington], the defendant must show
that there is a reasonable probability
that, but for counsel’s unprofessional
errors, the result of the proceeding
would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome. The defendant need not show
that counsel's deficient conduct more
likely than not altered the outcome in
the case, [b]ut it is not enough . . . that
the errors had some conceivable effect
on the outcome of the proceeding.
Id. (internal citations and quotation marks
omitted).
If one of the Washington prongs is
determinative, we need not consider the other.
See United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999). Murphy bears the burden
of demonstrating both Washington elements
by a preponderance of the evidence. See
Martin v. Maggio, 711 F.2d 1273, 1279 (5th
Cir. 1983). We review findings of fact made
in the course of deciding an ineffectiveness
claim for clear error but review the
performance and prejudice components de
novo. See Motley, 18 F.3d at 1226.
Murphy raised the claims of prosecutorial
misconduct for the first time in his § 2255
motion.
After conviction and exhaustion or
wavier of any right to appeal, we are
entitled to presume that the defendant
stands fairly and finally convicted. A
defendant can challenge his conviction
after it is presumed final only on issues
of constitutional or jurisdictional
magnitude, and may not raise an issue
for the first time on collateral review
without showing both “cause” for his
procedural default, and “actual
prejudice” resulting from the error. This
cause and actual prejudice standard
presents a significantly higher hurdle
than the plain error standard that we
apply on direct appeal.
United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991) (en banc) (internal citations
and quotation marks omitted). The “actual
prejudice” standard requires more than a
showing of possibility of prejudice: The
defendant must show that the trial errors
“worked to his actual and substantial
disadvantage, infecting his entire trial with
error of constitutional dimensions.” United
States v. Frady, 456 U.S. 152, 170 (1982).3
III.
A.
Murphy first claims his counsel was
ineffective for failing to interview and
investigate Modena Harvey, the sister-in-law
of Murphy’s mother. Murphy claims that
Harvey could have placed Murphy at the home
3 Murphy incorrectly argues both that the
district court should not have considered
procedural default and that this court should not do
so. See Wiggins v. Procunier, 753 F.2d 1318,
1321 (5th Cir. 1985).

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4
of Edna Murphy (Murphy’s mother) on the
day of the October 3 robbery.
While Murphy claims his counsel never
investigated Harvey, his counsel, by affidavit,
asserts that he gave the government Harvey’s
name as a potential alibi witness, but chose not
to present her testimony because he believed it
would contradict other alibi testimony.
Murphy’s counsel did call Murphy’s mother,
sister, and brother-in-law to establish
Murphy’s presence at Edna Murphy's home.
Murphy’s allegation thus fails to demonstrate
that his counsel was deficient, and Murphy
further fails to demonstrate the requisite
prejudice if there were such a deficiency: The
potential duplicative testimony of one more
witness related to Murphy does not undermine
confidence in Murphy’s convictions.4
B.
Murphy contends that his counsel was
ineffective for not interviewing potential
defense witnesses and for not interviewing
eyewitnesses to the crimes. The potential
defense witnesses are Susan Murphy
(Murphy’s estranged wife) and Anthony
Tartarilla (Murphy’s friend).5
Susan Murphy’s affidavit states that
Murphy had a full mustache on October1 and
5. Murphy argues Susan would have testified
that Murphy had obtained money by writing
bad checks on a closed bank account, thereby
explaining Murphy’s possession of money and
his reason for fleeing police.
Murphy’s counsel, by affidavit, cites two
reasons for not calling Susan to testify. First,
Murphy had given conflicting stories
concerning the source of his money, and
therefore counsel believed the testimony could
constitute perjury. Second, it would not have
been strategically sound to implicate Murphy
in another felony solely to remove the limited
implication of guilt a jury might draw from
possession of money and flight.
Although Susan’s testimony concerning
Murphy’s mustache would have corroborated
similar testimony of Edna Murphy and Mary
Tartarilla, its absence does not constitute
Washington prejudice. The decision not to
call Susan to testify to Murphy’s felonious
behavior of writing bad checks was a
legitimate strategic decision: “[A]n attorney’s
strategic choices, usually based on information
supplied by the defendant and gathered from a
thorough investigation of the relevant law and
facts, are virtually unchallengeable.” Bryant v.
Scott, 28 F.3d 1411, 1415 (5th Cir. 1994)
(internal quotation marks omitted).
Murphy further alleges that Anthony
Tartarilla would have testified to the presence
of Murphy’s mustache in early October. Once
again, the lack of this corroborating testimony,
given the substantial evidence of Murphy's
guilt, does not constitute Washington
prejudice.
Murphy’s contention that counsel was
ineffective for failing personally to interview
every eyewitness is likewise unavailing.6
Murphy’s counsel either personally
interviewed, had an investigator interview, or
at least reviewed the reports of, every witness
before that witness testified. As the district
court found, given the witnesses’ fairly
consistent identification of Murphy as the
robber and the incriminating evidence found in
the red Honda and Sable, it was not
unreasonable for counsel to decide that further
4 Although organizationally this opinion
considers each claim of ineffective assistance
independently, we recognize and apply the
Washington prejudice element as a totality. All of
Murphy’s claims of prejudice, considered together,
do not undermine confidence in his convictions.
5 Murphy also alleges ineffective assistance for
failure to interview Mary Tartarilla, but Mary was
interviewed by Murphy’s counsel prior to her
testimony at trial. She testified that Murphy
always wore a mustache, including in late October
1991.
6 This allegation is based solely on
eyewitnesses’ testimony, in response to questioning
by Murphy’s counsel, that they had never spoken
to his counsel previously.

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investigation of eyewitnesses was unnecessary.
Further, Murphy fails to assert any prejudice
that occurred because of the alleged failure to
interview.
C.
Murphy avers that counsel was ineffective
for failing to object during the cross-
examination of the final defense witness, FBI
Special Agent Skillestad, who identified a
photograph as the photograph of Murphy that
bank tellers had identified as depicting the
robber. Because no witness had so testified
during the government’s case-in-chief, Murphy
argues that this in effect permitted the
government to reopen its case by exceeding
the scope of direct examination.
Murphy’s counsel argues that not objecting
was a strategic decision to avoid drawing
undue attention to the testimony. Even were
such a decision unreasonable, Murphy fails to
demonstrate prejudice, because there is no
reason to believe the court would not have
allowed the government to reopen its case to
elicit the testimony.
Murphy also complains because his counsel
did not object when Skillestad gave the
possibly erroneous testimony that Rukshana
Khan, a teller involved in the October 3
robbery, was shown six photographs and
eliminated four. Khan actually testified that
she was shown around six to eight
photographs, and narrowed it down to two.7
This minor discrepancy did not prejudice
Murphy,8 and therefore he has failed to
demonstrate Washington prejudice.
D.
Murphy alleges that his counsel was
ineffective for failing to investigate the relevant
law and in failing to present available witnesses
supporting his chosen line of defense. The
chosen defense was that Murphy did not
commit the robberies and that the surveillance
photographs were actually the best evidence
for the defense because Murphy looked
considerably different from the individual
depicted in the photographs. Counsel
presented this defense, encouraged the jury to
compare the surveillance photographs with the
appearance of Murphy at trial, argued that
eyewitnesses’ descriptions were inconsistent,
presented Murphy’s alibi for October 3, and
presented evidence that Murphy had not been
clean-shaven for years.
What counsel failed to do was to ask
Murphy’s mother, sister, and brother-in-law
whether Murphy was the person depicted in
the photographs. Given their testimony of
Murphy’s alibi, and that Murphy wore a
mustache, this failure is not sufficient to
demonstrate Washington prejudice. Counsel’s
decision to rely primarily on the jurors’ own
comparison of the surveillance photographs
and Murphy’s presence at trial was not
unreasonable, as evidenced by the fact that a
teller who identified a photograph of Murphy
could not identify him in the courtroom.9
E.
Murphy contends that his counsel was
ineffective for failing to object to prejudicial
evidence, a two-sided fingerprint card bearing
Murphy's fingerprints. The front of the card
contained four of Murphy’s alleged aliases,
and the back bore the notation “armed and
dangerous.” The government introduced the
card to show that a fingerprint found on a beer
can in the red Honda was Murphy’s, but the
7 Another agent’s deposition states that Khan
was shown eight photographs. Khan’s testimony
regarding the number of photographs was as
follows: “I don't remember exactly but it was
around six to eight. I am not sure but I narrowed
it down to two.”
8 This is especially true given the fact that
Murphy’s counsel did verify on redirect that
Skillestad was not the agent who presented the
photo-array to Khan.
9 Murphy likewise contends that his counsel
was ineffective for not obtaining an expert to
compare his appearance to the depiction in
surveillance photographs. Given the stark
difference in appearance, it was not unreasonable
to present this argument to the jury without expert
evidence.

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government substituted a photocopy of the
front of the card to be given to the jury.
The front of the card also contained
statistical information concerning Murphy, in
particular that he was a white male, 5'9" tall,
who weighed 175 pounds. Murphy’s counsel
wanted this evidence before the jury to
impeach the reports of eyewitnesses that
differed from these statistics. Even were it
unreasonable for counsel not to require the
aliases to be blocked out or otherwise
removed from the exhibit, Murphy did not
suffer Washington prejudice.
F.
Murphy argues that counsel was ineffective
for failing to investigate circumstances
regarding his flight from police after he and
Floyd were stopped in a routine traffic stop.
Prior to trial, Murphy’s counsel asked Murphy
whether there was evidence that could
establish other reasons why Murphy might
have fled. Murphy responded in the
affirmative, namely that (a) there were
substantial amounts of heroin and cocaine in
the car, (b) Murphy had recently learned that
there was an outstanding warrant for his arrest
resulting from a parole violation, and
(c) Murphy had written a large number of bad
checks on a closed account.
Murphy’s counsel did not present any of
this evidence, and the court gave a flight
instruction10 as part of the jury charge. His
counsel claims that it was a strategic decision
not to introduce evidence of the several other
crimes committed by Murphy solely to avoid
the inference of guilt from evidence of flight.
Counsel instead argued that a flight instruction
was improper because there was no direct
evidence that Murphy knew he was a suspect
in the bank robberies. Murphy contends that
it was ineffective assistance not to have raised
the other-crimes evidence with the court.
Murphy cites United States v. Myers,
550 F.2d 1036, 1048 (5th Cir. 1977), in which
this court held evidence insufficient to warrant
giving a flight instruction on retrial. We noted
that the probative value of flight as an
admission by conduct was dependent on, inter
alia, the inference from consciousness of guilt
to consciousness of guilt concerning the crime
charged. See id. at 1049. Where the
defendant could be fleeing based on
consciousness of guilt of a crime other than
that before the jury, a flight instruction may be
improper. See id. at 1050.
In United States v. Kalish, 690 F.2d 1144,
1155 (5th Cir. 1982), we noted that “we have
consistently held evidence of flight to be
relevant evidence,” and thus “our standard of
review is whether the trial judge has abused his
discretion in determining that the probative
value of the evidence outweighs the danger of
unfair prejudice.” We distinguished Myers as
articulating the test for when a flight
instruction is proper, as opposed to the test for
when evidence of flight is admissible. See id.
at 1156. Moreover, we made plain that
whereas on the record in Myers a flight
instruction was not proper, it can be proper
even when the defendant may have a guilty
conscience for multiple offenses. See id.
at 1156-57.
There was circumstantial evidence that
Murphy’s flight was related to the robberies,
for investigators had spoken with members of
Murphy’s family, and the Sable contained
relevant evidence of the robberies (tools and
the .38 caliber pistol). Further, even were
Murphy’s counsel deficient in not presenting
the other-crimes evidence, the error did not
rise to the level of Washington prejudice.11
10 A “flight instruction” is an instruction on the
inference that flight potentially demonstrates a
consciousness of guilt.
11 Murphy also argues that the court abused its
discretion by ruling without an evidentiary hearing.
No hearing was required, because the existing
documentation conclusively demonstrates that
Murphy is not entitled to relief. See United States
v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990).

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IV.
Murphy argues that newly discovered
evidence proves that the government
knowingly used perjured testimony. He
suggests also that the new evidence shows the
government knowingly withheld exculpatory
identification evidence.
A.
The allegedly perjured testimony was given
by Skillestad and Floyd. Skillestad may have
mistakenly testified that Khan was shown six
photographs, if she was actually shown eight.
Floyd mistakenly testified that he had a prior
conviction for conspiracy to import controlled
substances, when his conviction actually was
for conspiracy to obtain a controlled substance
by fraud.12 These de minimis mistakes do not
rise to the “actual prejudice” standard required
by Shaid.
B.
Murphy contends the government
knowingly withheld exculpatory evidence that
Donald Morris, Alan Duke, and Carlos
Kirkland were shown bank surveillance
photographs and stated that Murphy was not
the one depicted therein. Murphy likewise
contends that the government used
unconstitutionally suggestive identification
procedures with Janieth Moore and Donald
Morris.
Morris, Duke, and Kirkland are friends of
Murphy’s who were not eyewitnesses to the
robberies or any other relevant events. Moore
and Morris did not testify, and Murphy does
not allege any link between the identification
procedures used with those individuals and the
identification procedures used for those who
did testify.
Even assuming Murphy could satisfy the
“cause” bar of procedural default, he fails to
demonstrate actual prejudice resulting from
the alleged errors. Given the substantial
evidence of his guilt, and further that the
defense strategy was that the jury could
recognize that he was not the person depicted
in surveillance photographs, the absence of this
information did not prejudice Murphy’s trial.
AFFIRMED.13
12 Floyd also testified that he had been convicted
of burglary, possession of cocaine, and theft
offenses.
13 Murphy’s motions for oral argument by
teleconference and for appointment of counsel to
conduct oral argument are DENIED.

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