Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY LEE MURPHY, §

#02416312, §

Petitioner, §

§

v. § No. 3:24-cv-02452-K-(BT)

§

DIRECTOR, TDCJ-CID, §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Through a pro se application for a writ of habeas corpus under 28 U.S.C.

§ 2254, Petitioner Bobby Lee Murphy, a Texas state prisoner, challenges his 2022

Dallas County conviction for murder. See generally Petition (ECF No. 3). Based on

the relevant filings and applicable law, the Court should DENY the petition.

Background

Petitioner was indicted for murder and pled not guilty. See ECF. No. 24-1 at

24. The State then filed a notice of its intent to seek enhanced punishment based

on Petitioner’s prior offenses. See Notice to Seek Enhanced Punishment (Notice)

(ECF No. 24-1 at 48). On September 16, 2022, a jury found him guilty, found the

enhancements true, and sentenced him to life imprisonment with the possibility of

parole. See ECF No. 24-21 at 58-60; see also State v. Murphy, No. F-2125327

(265th Jud. Dist. Ct., Dallas Cnty., 2022).

On February 20, 2024, the Fifth Court of Appeals affirmed Petitioner’s

conviction. See Memorandum Opinion (ECF No. 24-17); see also Murphy v. State,

No. 05-22-00950-CR, 2024 WL 685924, at *1 (Tex. App.--Dallas Feb. 20, 2024)).

Petitioner did not seek discretionary review but filed a state application for a writ

of habeas corpus, which the Texas Court of Criminal Appeals (TCCA) denied

without written order. See ECF. No. 24-22.

On September 27, 2024, Petitioner filed the present petition asserting four

grounds for relief: (1) trial counsel rendered ineffective assistance by failing to

present witnesses or expert testimony; (2) the indictment was defective for failing

to allege enhancement paragraphs; (3) trial counsel rendered ineffective assistance

by advising Petitioner not to testify; and (4) the State’s notice of extraneous

offenses was false and improper. Pet. at 5-10. Petitioner seeks to have his

conviction set aside and requests a new trial with appointed counsel.

Legal Standard

“Federal habeas features an intricate procedural blend of statutory and

caselaw authority.” Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner

may not obtain federal habeas relief

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that 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) resulted in a decision that 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).

This standard “restricts the power of federal courts to grant writs of habeas

corpus” and ensures that “state courts play the leading role in assessing challenges

to state sentences based on federal law.” Shinn v. Kayer, 592 U.S. 111, 124 (2020).

A decision is found “contrary” to clearly established federal law only if “it relies on

legal rules that directly conflict with prior holdings of the Supreme Court or if it

reaches a different conclusion than the Supreme Court on materially

indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); see

also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam) (emphasizing that circuit

precedent cannot define what qualifies as “‘clearly established’” federal

law)(citations omitted). And a decision involves an “unreasonable application” of

federal law when the state court “identifies the correct governing principle” but

“unreasonably applies that principle to the facts.” Williams v. Taylor, 529 U.S.

362, 412-13 (2000).

The inquiry is not whether the state court was incorrect, but whether its

decision was “so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Federal courts

must “determine what arguments or theories supported . . . or could have

supported the state court’s decision” and then ask whether fairminded jurists could

disagree that those arguments are inconsistent with Supreme Court precedent. Id.

“If this standard is difficult to meet, that is because it was meant to be.” Id. at 102.

A state court’s factual findings are presumed correct and may be rebutted

only by clear and convincing evidence, even where the determination is debatable.

Wood v. Allen, 558 U.S. 290, 301, 303 (2010). This presumption applies not only

to explicit findings of fact but also “to those unarticulated findings which are

necessary to the state court’s conclusions of mixed law and fact.” Valdez v.

Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); see also Ford v. Davis, 910 F.3d

232, 235 (5th Cir. 2018) (recognizing that “As long as there is ‘some indication of

the legal basis for the state court’s denial of relief,’ the district court may infer the

state court’s factual findings even if they were not expressly made.” (footnotes

omitted)). Thus, a petitioner must show more than error—he must show that the

state court’s decision was “objectively unreasonable.” Williams, 529 U.S. at 409-

10.

Analysis

A. Petitioner’s ineffective assistance claims (Grounds One and

Three) fail under Strickland’s doubly deferential standard.

Claims of ineffective assistance of counsel are governed by the two-part

framework established in Strickland v. Washington, 466 U.S. 668, 687 (1984),

and, where a state court has already adjudicated the claim on the merits, are

further filtered through AEDPA’s deferential standard of review. Under this

“doubly deferential” inquiry, the question is not whether counsel’s performance

was ideal, but whether the state court’s rejection of the claim was contrary to, or

an unreasonable application of, Strickland. See Knowles v. Mirzayance, 556 U.S.

111, 123 (2009); see also Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (stating that

a court’s review requires a “highly deferential” look at counsel’s performance)

(citation omitted). This standard is intentionally difficult to satisfy. Richter, 562

U.S. 86 at 102.

To prevail, Petitioner must demonstrate both that counsel’s performance fell

below an objective standard of reasonableness and that there is a substantial

likelihood the result of the proceeding would have been different absent the alleged

error. Strickland, 466 U.S. at 687-94; Richter, 562 U.S. at 112 (“The likelihood of

a different result must be substantial, not just conceivable.”). Conclusory

allegations satisfy neither prong. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.

2000). Petitioner’s claims under Grounds One and Three fail on both.

1. Ground One: Petitioner fails to show counsel was ineffective for not

presenting witnesses or expert testimony.

Petitioner contends that counsel failed to call witnesses or experts to contest

the State’s case. Pet. at 5. This claim fails because Petitioner does not provide the

basic factual showing necessary to establish either deficient performance or

prejudice.

To prevail on an uncalled-witness claim, a petitioner must identify the

witness, show the witness was willing to testify, and demonstrate the testimony

would have been favorable and material. Day v. Quarterman, 566 F.3d 527, 538

(5th Cir. 2009); Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001).

Petitioner offers none of this. He provides no affidavits, no evidentiary support,

and no identification of any specific individual whose testimony would have altered

the result. Speculation about what unnamed witnesses might have said cannot

satisfy Strickland. Sayre, 238 F.3d at 635-36.

Instead, Petitioner offers only generalized assertions that additional

witnesses or experts might have challenged the State’s case. Such allegations are

merely speculative and insufficient to establish deficient performance. See Ross v.

Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Without some showing of what the

missing evidence would have been, the Court cannot conclude that counsel’s

performance fell outside the wide range of reasonable professional assistance.

Moreover, decisions regarding whether to call witnesses, including expert

witnesses, are matters of trial strategy. Pape v. Thaler, 645 F.3d 281, 291 (5th Cir.

2011). Counsel may reasonably decline to present certain testimony based on

concerns about credibility, potential impeachment, or the risk of reinforcing the

State’s theory. Courts must therefore presume that such decisions were strategic

and reasonable. Strickland, 466 U.S. at 689. Petitioner offers nothing to overcome

that presumption.

Petitioner also fails to establish prejudice. Because he does not identify what

favorable testimony was omitted, he cannot show a reasonable probability—much

less a substantial likelihood—that the outcome would have been different. Any

conclusion to the contrary would be purely speculative. For that reason alone, the

claim fails. See Sayre, 238 F.3d at 635-36.

Finally, under AEDPA, the Court must defer to the state court’s rejection of

this claim unless no “fairminded jurist” could agree with that result. Richter, 562

U.S. at 101. At a minimum, reasonable jurists could conclude that Petitioner’s

unsupported allegations fail to satisfy Strickland. Ground One should therefore be

denied.

2. Ground Three: Petitioner fails to show counsel was ineffective for

advising him not to testify.

Petitioner next argues that counsel was ineffective for advising him not to

testify. Pet. at 8-9. Although a defendant has a constitutional right to testify on his

own behalf, Rock v. Arkansas, 483 U.S. 44, 49-53 (1987), strategic advice

regarding the exercise of that right does not constitute deficient performance

unless counsel overrides the defendant’s independent decision. Emery v. Johnson,

139 F.3d 191, 198 (5th Cir. 1997). Where a criminal defendant “knew of his right to

testify and wanted to do so but counsel was opposed [and the] defendant

acquiesced in his lawyer’s advice, . . . the only inquiry is whether that advice was

sound trial strategy.” United States v. Mullins, 315 F.3d 449, 453-54 (5th Cir.

2002). There is a “strong presumption” that counsel’s decision not to place his or

her client on the stand is “sound trial strategy.” Sayre v. Anderson, 238 F.3d 631,

635 (5th Cir. 2011).

Here, the record reflects that Petitioner was informed of his right to testify

and affirmatively chose not to do so. See ECF No. 24-9 at 108-10; see also Response

at 1-3 (ECF No. 23-7). Nothing in the record suggests that counsel prevented

Petitioner from testifying or overrode his decision. At most, Petitioner now

disagrees with counsel’s advice in hindsight.1 That disagreement does not establish

deficient performance under Strickland.

Nor does Petitioner demonstrate prejudice. Although Petitioner suggests

that he would have testified to answer questions about the offense and express

remorse to the court and the victim’s family, that showing is insufficient. Reply at

2-3 (ECF No. 29). Even crediting Petitioner’s description of his proposed

testimony, it does not establish a substantial likelihood of a different result.

Petitioner does not explain how his testimony would have meaningfully rebutted

the State’s evidence of guilt. See Sayre, 238 F.3d at 635. His description focuses

primarily on accepting responsibility and expressing regret, not on disputing the

underlying facts of the offense. Such testimony does not undermine confidence in

the jury’s verdict at the guilt phase. Without a concrete showing of how his

1 To the extent Petitioner’s claim could be construed as a claim that counsel —

actively coerced his client not to testify, it likewise fails. The TCCA, in denying this

claim necessarily found that counsel did not coerce Petitioner into not testifying.

This implicit finding is entitled to a presumption of correctness, and Petitioner has

not presented clear and convincing evidence that the finding was incorrect. See,

e.g., Spencer v. Dir., TDCJ-CID, 2022 WL 684572, at *4 (E.D. Tex. Feb. 3, 2022)

(finding that the petitioner failed to show state court rejection of claim that

attorney coerced petitioner into testifying was unreasonable where the state

habeas court implicitly rejected it in denying relief), rec. accepted 2022 WL

672690 (E.D. Tex. Mar. 7, 2022). Thus, to the extent that Petitioner claims his

attorney coerced him into not testifying, he fails to show that the state court’s

rejection of his claim was contrary to or involved an unreasonable application of

federal law. Nor does he show that the state court’s rejection of this claim resulted

in a decision based on an unreasonable determination of the facts in light of the

evidence.

testimony would have changed the evidentiary picture before the jury, any finding

of prejudice would be speculative.

Accordingly, even considering Petitioner’s description of his proposed

testimony, he fails to satisfy either prong of Strickland. And because fairminded

jurists could agree with the state court’s rejection of this claim, AEDPA forecloses

relief. Ground Three therefore fails.

B. Ground Two: Petitioner’s indictment claim is not cognizable on

federal habeas review.

Petitioner contends that the murder indictment issued by the grand jury

contained no enhancement paragraphs. Pet. at 7. This claim fails for two

independent reasons.

First, the sufficiency or form of a state indictment is generally a matter of

state law and does not raise a federal constitutional question cognizable under

§ 2254. Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984); Alexander v.

McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). A defect in a state charging

instrument warrants federal habeas relief when the indictment “ is so defective that

it deprives the state court of jurisdiction.” McKay v. Collins, 12 F.3d 66, 68 (5th

Cir. 1994); Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988). Petitioner

makes no such showing. He does not allege that he was unaware of the charges

against him, that his ability to prepare a defense was impaired, or that any

deficiency in the indictment affected the fairness of his trial.

Second, Petitioner was convicted of murder and sentenced to life with

parole, a sentence that falls squarely within the unenhanced punishment range for

first-degree murder under Texas law. See Tex. Penal Code

§ 12.32 (range of five to ninety-nine years or life), see also id. § 19.02 (an offense

under this section is a felony of the first degree). In the sentencing context, courts

consider the actual sentence imposed in relation to the available statutory range.

See Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir. 2008) (citations omitted).

Here, because the life sentence imposed was fully authorized without any

enhancement, Petitioner cannot show that any alleged defect in the indictment had

a substantial or injurious effect on his sentence.

Moreover, the record shows that enhancements were provided in a separate

notice that were referenced in the jury verdict. See Notice (ECF No. 24-1 at 48); see

also Jury Verdict (ECF No. 24-1 at 307-08). That further undermines Petitioner’s

factual premise and confirms that he was neither uninformed of, nor unprotected

from the enhancements at issue. United States v. Ylda, 643 F.2d 348, 352 (5th Cir.

1981). Therefore, Ground Two should be denied.

C. Ground Four: Petitioner’s claim regarding the State’s notice of

extraneous offenses does not present a cognizable due process

claim.

Petitioner’s final claim that the State’s notice of extraneous offenses

contained numerous false and irrelevant entries (Pet. at 10), likewise does not

entitle him to federal habeas relief.

As a threshold matter, challenges to state evidentiary rulings, including the

admissibility of extraneous offense evidence, are generally questions of state law

that do not rise to the level of constitutional violations cognizable under § 2254.

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions.”).

The State’s obligation to provide notice of extraneous offenses arises under Texas

Rule of Evidence 404(b) and Texas Code of Criminal Procedure article 37.07—both

state-law provisions. Petitioner’s disagreement with the scope and accuracy,

standing alone, does not raise a federal violation.

Even construing the claim liberally as a due process claim, Ground Four still

fails. To obtain relief based on the admission of extraneous offense evidence, a

petitioner must show that the evidence was so unduly prejudicial that it rendered

the trial fundamentally unfair, not merely that it was harmful or that the trial court

erred in admitting it. Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992);

Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983)

In his filings, Petitioner asserts that certain categories of offenses listed in

the notice—such as prior non-violent conduct, juvenile matters, or out-of-state

records—were not “supportive” of the charged offense and should not have been

included. Reply at 3-4. But these assertions do not establish a due process

violation. Petitioner does not identify which specific entries were actually admitted

into evidence at trial, explain how any particular item was used by the State, or

demonstrate that the jury’s verdict turned on such evidence. Without that showing,

the Court cannot conclude that the proceedings were rendered fundamentally

unfair. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Furthermore, to the extent Petitioner claims that the State presented false

evidence, such a claim would ordinarily implicate Napue v. Iilinois, 360 U.S. 264

(1959), which prohibits the prosecution from knowingly using false testimony to

obtain a conviction. But Petitioner does not allege that any witness testified falsely

or that the prosecution knowingly presented perjured testimony. He challenges the

pretrial notice instrument itself, not the trial testimony, and that challenge does

not state a Napue violation.

Ground Four should be denied.

Recommendation

For the foregoing reasons, the petition for writ of habeas corpus (ECF No. 3)

should be DENIED, and this case should be DISMISSED WITH PREJUDICE.

SO RECOMMENDED on May 18, 2026.

HON. R. RU ERFORD

UNITED STATES MAGISTRATE JUDGE

12

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the

manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). An objection

must identify the specific finding or recommendation to which objection is made,

state the basis for the objection, and indicate the place in the magistrate judge’s

report and recommendation where the disputed determination is found. An

objection that merely incorporates by reference or refers to the briefing before the

magistrate judge is not specific. Failure to file specific written objections will bar

the aggrieved party from appealing the factual findings and legal conclusions of the

magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,

1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections to 14 days).