United States v. Murphy

UNITED STATES OF AMERICA v. DANNY RAY MURPHY a/k/a/ “Mr. Duckblue”

Nos. 3:17cr29/MCR/EMT, 3:19cv3832/MCR/EMT

United States District Court, N.D. Florida, Pensacola Division

April 22, 2022

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

This matter is before the court on Defendant Danny Ray Murphy's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 84). The Government filed a response (ECF No. 89), to which Defendant Murphy filed replies (see ECF Nos. 90, 91).^[1] The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed.R.Civ.P 72(b). After a careful review of the record and the arguments presented, the undersigned recommends that the section 2255 motion be denied without a hearing. See Rules 8(a) and (b), Rules Governing Section 2255 Proceedings.

PROCEDURAL BACKGROUND

Danny Ray Murphy (Murphy) was charged in a three-count indictment with conspiracy to receive and possess child pornography, receipt of child pornography, and possession of child pornography (ECF No. 1). The Government's evidence against Murphy was gathered from surveillance operations and forensic results of digital device searches. Briefly stated, Murphy conspired with another individual to receive and possess graphic images of the other individual's sexual assault of a three-year old boy (ECF Nos. 1, 53, 70-73, 81-82).

Murphy proceeded to a jury trial, represented by court-appointed counsel Donald Sheehan (ECF Nos. 70-73, 76). Murphy testified on his own behalf as the only defense witness (id. at 213-56). The jury found Murphy guilty as charged, with certain additional findings-namely, conspiracy to both receive or attempt to receive and possess or attempt to possess child pornography, receipt of child pornography, and possession of child pornography involving a prepubescent minor (see ECF No. 37, Verdict Form).

Murphy's Presentence Investigation Report (PSR) calculated his total offense level as 34 and his criminal history category as I, yielding a sentencing guidelines range of 151 to 188 months (ECF No. 53). At sentencing, the district court overruled a defense objection to the obstruction enhancement, stating it had “little trouble finding that Mr. Murphy committed perjury on the witness stand” during his trial, in an unsuccessful attempt to persuade the jury that he was not guilty (ECF No. 72 at 6-7). More significantly, the court sustained the Government's objection to the PSR's omission of the guidelines cross reference in U.S.S.G. § 2G2.2(c)(1)^[2](see ECF No. 49; ECF No. 73 at 7-28). Murphy's re-calculated total offense level became 43, which, under the sentencing guidelines, calls for a sentence of life imprisonment, irrespective of the criminal history category (ECF No. 58 at 4; ECF No. 73 at 28-29). However, because Counts One and Two each carried twentyyear statutory maximum terms of imprisonment, the total maximum sentence the court could impose was 480 months (by imposing consecutive, maximum terms on Counts One and Two) (ECF No. 73 at 29-30).^[3] The court imposed the maximum sentence of 480 months, noting it could not imagine, and had never seen, “a more egregious or heinous case of receipt of child pornography” (id. at 59).^[4]

Murphy appealed. He challenged the district court's application of the cross reference, arguing he did not produce or cause the production of child pornography. He also asserted his sentence was substantively unreasonable. The Eleventh Circuit Court of Appeals rejected his arguments and affirmed his sentence (ECF No. 81).

Murphy timely filed the instant motion, in which he raises thirteen grounds for relief. The Government opposes the motion in its entirety.

STATEMENT OF FACTS

The facts of this case can generally be found in the indictment, trial and sentencing hearing transcripts, PSR, judgment and statement of reasons, and Eleventh Circuit's opinion on appeal. A description of the core facts underlying the offense conduct is not necessary for the resolution of Murphy's claims and will not be set forth herein. In sum, Murphy conspired with another individual via electronic means to receive and possess graphic videos and images of the rape and sexual assault of a three-year old boy-the son of the person with whom Murphy communicated. The communications took place during a two-month period, between November 2016 and January 2017. Law enforcement first arrested the person who created the videos and then assumed his identity and continued communicating with Murphy.

ANALYSIS

General Standard of Review

“Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v United States 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent ....”

The law is well established that a district court need not reconsider issues raised in a section 2255 motion that have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be relitigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (internal quotation marks omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021) (citation omitted); Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills v. United States, 36 F.3d 1052, 105 (11th Cir. 1994)). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes either (1) cause for not raising the ground on direct appeal and actual prejudice resulting from the alleged error, or, alternatively, (2) he is “actually innocent.” Granda, 990 F.3d at 1286; Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted).

To show cause sufficient to excuse a procedural default, a defendant must show that “some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344. Actual prejudice is more than just the possibility of Case Nos.: 3:17cr29/MCR/EMT; 3:19cv3832/MCR/EMT prejudice; “it requires that the error worked to the petitioner's actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Granda, 990 F.3d at 1288 (internal quotation marks omitted).

Ineffective assistance of counsel claims generally are not cognizable on direct appeal and are properly raised by a section 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) his attorney's representation fell below “an objective standard of reasonableness, ” and (2) a reasonable probability exists that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that [ ]he was prejudiced by that performance.” Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. 2007) (internal quotation marks, brackets, and citations omitted)^[5]; see also Johnson v. Alabama, 256 F.3d 1156,...