Petition for Writ of Certiorari — Boris Murphy, Petitioner v. United States

18-8R52

aL

IlL.!

IN THE

DEC 06 203

SUPREME COURT OF THE UNITED STA

ROPTS C. MITPPT4Y

(Your Name)

FFICEQFr!-;r C!.

PETITIONER

-

vs.

UNITED STATES OF AMERICA

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

BORIS C. MURPHY

(Your Name)

FEDERAL CORRECTIONAL INSTITUTION MCDOWELL

(Address)

P.O.BOX 1009.WELCH WEST VIRGINIA,24801

(City, State, Zip Code)

(Phone Number)

CEIVED ]

I MAR 5 2019

OFFICE OF THE CLERK

Ij SUPREME

COURT, jJ

-

VED

F

RE

2019

HE CLE

OURT

QUESTION(S) PRESENTED

Did the Fourth Circuit review the District Courts error

in denying petitioners 28 U.S.C. 2255 claim de novo that was

based on conflict of interest and deficient performance in

rerfererice to counsels direct involvement in seeking State

Death Penalty and failure to for direct appeal.

Was it a violation of U.S. Constitution 5th & 6th Amendments,

where district court's abuse of discretion prejudice petitioner

by not admonishing petitioner of appellate rights in violation

of due process and 6th Amendment trial rights, with couselor

records coersion resulted in the plea being accepted unknowingly,

involuntarily, and unintelligently.

LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[1 All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

#--~ C-

TABLE OF CONTENTS

OPINIONSBELOW .........................................................................................................

JURISDICTION....................................................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................

STATEMENT OF THE CASE ............................................................................................

REASONS FOR GRANTING THE WRIT ..........................................................................

CONCLUSION....................................................................................................................

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

2000

14

BELL V.JARVIS 236F3d 149 164 (4th Cir.

DOUGLAS V CALIFORNIA372 O.S. 353,83 S.CT ...............14

EVITTS V LUCEY 469U.S;.. 387,406,Led 2d 821 ...............14

GORDON V BRAXTON 780 F3d 196,1204 (4thcIR 2015) .........11

HOLLAND V FLORIDA 130 s.ct 2549,2562 (2010) ..............18

LEDEZMA RODRIQUEZ,423 F3d at 836 .......................19

MINTER V BECK 230 F3d 663-666 4th Cir 2000 ..............19

ROE V FLORES ORTEGA NO. 98-1441 (2000) ..................15

STRICKLAND VWASHINTON 466 U.S. 668 (1984 ..............14

UNITED. STATES V CRONIG466 ,648 (1984) .................17

UNITED STATESV GALBALDON 522,F3d 1121,1126 (10 cir 2008...18

UNITED STATES FIGURERO 526 U.S. 23,28 (1999 .............15

r 2014...13

UNITED STATES V IAN PURSAUD NO.13-435 ( 6th c i

UNITED STATES V JONES 143 Led 2d 311,526 u.s.277 .......13Ui

.18

UNITED STATES V JONES 689 f3d 621,627 (6th Cir 2012

UNITED STATES NICHOLSON 475 F3D 241,248 (4th cir 2000.

.11

.

...

.

UNITED

STATES V ROD

3'.11 7

P28,9336th cir

2006)

STATUTES AND RULES

28 U.S.C.2255 .............................................17

28U.S.C. 2255f)4) .....................................

F.R.C.p.

..........................................17

F.R .0 .(

4, W ;;--;; - ;;......13

, , , , , , , , , , 1, 13

OTHER

18

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix B

the petition and is

to

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

; or,

[1 reported at

[ ] has been designated for publication but is not yet reported; or,

[] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

; or,

[1 reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

court

-

to the petition and is

; or,

[ ] reported at

[] has been designated for publication but is not yet reported; or,

[] is unpublished.

1.

/

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was 2-11-2010

[ ] No petition for rehearing was timely filed in my case.

[I A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

{ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No.

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

PLEA AGREEMENT RULE 11(c)(1)(f) ............................. 13

UNITED STATES 6th CONSTITUTIONAL AMENDMENT.................13

UNITED STATES 5th CONSTITUTIONAL AMENDMENT ..................13

STATEMENT OF THE CASE

The petitioner endeavours ith;historical occurences of the

attorney of record DOUGLAS CORKHILL representation fell far below

the prevailing of which constituted deficient performance

where the counsel of record (erèinafter CORKHILL).•H:,

CORKHILL demonstrated conflict of interests and deficient

performance with the listing of such set out as follows;

On October 21 1998 Petitioner Murphy was sentenced to life

plus 300 months.Petitioner Murphy (hereinafter Murphy) was

represented by attorney Douglas Corkhill. Corhill led Murphy

to belive that he would be sentenced to 25 years.

The UNITED STATES DISTRICT JUDGE sentenced Murphy to life plus

300 months. When Murphy inquired as to the reasoning of the

excessive sentencing ,the attorney responded:.that he would come

to the back and communicate with Murphy. Corkhill did not come

and speak to the petitioner.Murphy. This was the initial

conflict of interests where the counsel of record actions

seemingly minute was not by the ramifications and effect of the

excessive sentencing.see,UNITED STATES V MIGLIACCIO 34 F3d 1517

1526(10 dR. 1994) (DEFENSE COUNSELS PERFORMANCE IS ADVERSELY

BY AN ACTUAL CONFLICT OF INTEREST:;IF A SPECIFIC AND SEEMINGLY

VALID OR GENUINE ALTERNATIVE STRATEGY WAS AVAILABLE WOODEFENSE

COUNSEL,BUT WAS INHERENTLY IN CONFLICT WITHHH1S DUTIES TO OTHERS

OR TO HIS OWN PERSONAL INTERESTS")

All attempts to contact Corkhill was futile resulting in

Murphy contacting the State bar associatiôn:,upon which they

instructed Corkhill to respond to the letters and communication

made by Murphy. The date of which was NOVEMBER 22,2002.

Murphy had made,.- numerous attempts to contact and call corkhill

from as far back as APRIL 16 2002

.

Petitioner Murphy would like to bring to this Court's

attention how District Court Judge Britt constant denial "without

an order" made understandingly the law difficult to capture for

challenge, and respond too.

Around January 2018 Petitioner Murphy filed a motion for

reconsideration from the District Court Judge 2005 "stamped"

hand signature upon petitioner's original drafted motion. The

denial was never known to (me) petitioner until Oct. 2017. During

the month of Oct. 2017 (I) Petitioner started paying for certain

motion dealing with my case.

Petitioner Murphy would like to make known to this Honorable

Court and Justice's, that for the last past 20 years the things

that transpired throughout my legal proceeding is totally

shocking. Every piece oflegal -document that I was entitled to

during pre-trial stages inevèr received. For example: Petitioner's

Indictment, Motion of Discovery (1,000 pgs. total) and Bill of

Particular.

I, Boris Murphy do not prefer to take up to much of this

Honorable Court's time dealing with the contesting of my

timelines. Acting in pro-se (I) petitioner fully agree that I'm

time-barred, but through the exercise of Due Diligence and the

showing of cause will relay that an evidentiary hearing is needed

And a Certificate of Appealability is warranted. Petitioner

Murphy only disagrees with the District Court for not analyzing

the facts which caused him to be out of time, and the Court's

refusal to hold an evidentiary hearing.

2

* Summary of the Case.*

Aug. 1997 petitioner was arrested and appointed counsel,

Douglas Corkhill (private practice) by the District Court.

Petitioner's case was joined with (3) other co-defendants whom

were all related. While awaitingtrial, petitioner Murphy was

prescribed an anti-depressant medication called Zoloft. While

awaiting trial, known and unknown of the charges that I faced by

grand jury indictment, Atty. Corkhill never went over the charges

with petitioner nor gave him copies of the indictment or

discovery. 4/11/2000 (payment of indictment).

July 1998, petitioner Murphy was asked by Atty. Corkhill his

decision for the A.U.S.A. (prosecutor) trial or plea. I instantly

said trial. Atty. Corkhill told petitioner that he loves trying

cases, but this case we cannot win. Atty. Corkhill gave me time

to make a clean decision. The next following day (Friday)

petitioner had his sister Mrs. Jasina Battle call attorney Corkhill

and find the location to send her brother's clothes for trial.

That next week (Monday) morning Atty. Corkhill was back at the

jail screaming asking me What are you doing,* telling me we

can't win. Then saying, "Willie is going to tell on you, Antonio

is going to tell on you and T.J. (Thomas Jerrnaine) is going to

tell on you." I'm looking at attorney Corkhill puzzled wondering

what made him say that. Atty. Corhill then tells petitioner if

he went to trial he'll get a Life Sentence,: but if petitioner

took the govt.'s plea offer, petitioner would likely get 25 yrs.

Petitioner Murphy states to Attorney Corkhill that 25 yrs is a

3

life sentence and that he'll be better off going to trial.

Attorney Corkhill then replied by saying *Boris you're 26 yrs

old, you'll be around the age of fifty when you get out, I want

you to be able to play with your grandkids one day. That

statement there by Atty. Corkhill was what made me sign that plea

which at that moment was (a single sheet of paper). I, petitioner

Murphy, truthfully admit that (I) never seen or read this plea

package that I purchased and possess today,.

Dec. 21, 19982 (I) Petitioner Murphy was sentenced to Life

plus 25 yrs on a plea bargin. After the Judge sentenced me, I asked

Atty. Corkhill what happened, and Attorney said he'll be back to

the holding tank to talk to me. Attorney Corkhill never showed-up.

The next following day petitioner Murphy called Mr. Corkwell

and asked him what happened. Atty. Corkhill stipulated that the

Judge sentenced me for the Murder. Atty. Corkhill and I talked

about appealing my case, he also reminded me that an appeal can

take 2 to 3 years for any results.

Nov. 2002, petitioner Murphy reached out to the *North

Carolina State Bar* in reference to Mr. Corkhill not answering

petitioner's call nor responding to petitioner's letters concerning

the outcome of his appeal. The State Bar had attorney Corkhill

respond to petitioner's complaint. Mr. Corkhill responded *you

plead guilty both federal and state (1) , there was nothing to

(1) Petitioner Murphy was indicted by the state grand jury and also represented

by attorney Corkhill in a one-day setting (Dec. 23, 1998)

4

appeal.* With death of his father, Oct 1st 2002, and denial from

that moment, petitioner was lost and felt betrayed because this

was his only hope. This same Attorney, petitioner allowed to

deceive him into signing a plea for a life sentence, when petitioner

stressed tFfe urge of going to trial. Now since the N.C. State Bar

opened the communication, petitioner Murphy continued to write/draft

letters to Atty. Corkhill, stressing the fact how he wanted trial

and how attorney mislead him. Petitioner pleaded with (his)

attorney Corkhill to file a motion with the Court so he can have

an opportunity at a new trial, see: (Exhibit of letters in

petitioner's §2255 motion).

May 2003, petitioner had just found out through the 4th Cir.

Court of Appeals that no appeal was onfile. Petitioner Murphy

then reached out to District Court by motion, in reference of

obtaining copies of his plea and sentencing transcript, in order

to help file his §2255 motion. Petitioner was denied by Order

(6/20 /2003) for those copies that attorney Corkhill insisted on

me retreiving from the District Court. In that Order of Denial

Judge Britt made petitioner aware of by stipulating this: As a

final matter, the Courts point defendant's attention to the fact

that his plea agreement, he waived all rights to appeal and to

contest his conviction or sentence pursuant to 28 U.S.C. §2255,

except his "rights to appeal based upon grounds of ineffective

assistance of counsel and prosecutorial misconduct not known to

the defendant at the timeof the defendant's guilty plea."

Petitioner Murphy would like to point out to this Honorable

Court, not once did the District Judge point out to him a

timetable of filing his appeal based on newly discovered facts,

28 U.S.C. §2255(f)(4).

Denial of Transcript 6/20/2003

After the District Court denied petitioner Murphy of his

transcript, petitioner began taking a Legal Research Class and

also purchased (2) N.C.Federal and State Law books from "Starlight

Inc.," out of St.Petersburg, Florida (See: Response to Judge's

Order) stipulating the same.

* Response to Judge's Order to Show Cause *

On Oct. 1st 2003 petitioner. Murphy entered Special Housing

Unit and was released on Nov. 10th 2003. On Oct. 2nd 2003

petitioner's property was reviewed with him in the presence of

Officer Jessmer (Property Officer for S.H.U. inmates) who was

working at that time. Petitioner stipulated to Officer Jessmer

that his legal papers and legal books was missing. C.O. Jessmer

made note of this on potitioner's property form, in which

petitioner later made as an Exhibit in his §2255 motion as

evidentual facts.

On 10/07/2003, petitioner was met by U.D.C. (Unit Disciplinary

Committee) which he stipulated to his Unit Manager the loss of

his legal material. As evidentual facts petitioner Murphy also

showed verification of "Counselor Dole's" signature through a

BP-5148.055(inmate request form to staff) confirming the ups and

I

downs that the petitioner went through to find his legal material

with Unit Manager Mr. Roy, (See: Exhibit §2255).

28 U.S.C. §2255 Motion Submitted

On Oct. 2004, petitioner finally submitted his 2255 motion

with the help of another inmate legal counseling (J. Carter).

Petitioner still admits today(2018) that this was a well legalized

motion drafted up, truthfully. Petitioner's Ineffective

Assistance of Counsel claim was established and backed up with

helpful known and unknown case law.

* Judge's

Order for Petitioner to Show Cause *

On Dec. 16th 2004, Judge Britt ordered petitioner Murphy an

opportunity to show that his petition is timely or that the

circumstances warrant equitable tolling (See: Petitioner's

Response to Show Cause).

On March 1st 2005, response to the Court's order Dec. 16th

2004 order dismissed as untimely. This order by Judge Britt

stipulated that in petitioner's response, petitioner attempts to

explain his circumstances from the time period of Oct. 2003 to

April 2004. The very next paragraph the Judge stipulated "without

deciding" whether such circumstances would justify equitable

tolling of §2255's one-year limitation period, the Court found

the Plaintiff had ample time to file the petition from May 8th

2003.

7

Petitioner finds Judge Britt's statement to be without

reason and contrary to the fact to show cause, an order given

to the petitioner for opportunity. But instead without deciding,

the Judge denies it.

* New Discovered Evidence

On Oct. 2017, twelve plus years later, petitioner Murphy

wrote the District Court Clerk and inquired about obtaining

certain motions in his criminal court docket. Instruction was

given along with the amount needed to retreive case file from

the Federal Reserve out of Atlanta GA. Petitioner then went ahead

and sent the Clerk Office $100.00. Petitioner have always been

curious of what actually happened in his case and why attorney

Corkhill didn't want to take his case to trial (See: page 32 of

Supplimental Brief Exhibit at 4th Cir. Court of Appeals). Counsel

for petitioner failed to file for discovery which consisted of

1,000 pages. Counsel knew that petitioner Murphy faced at the

"bare minimum" Life plus 25 yrs. based off a Guilty Plea (See:

Docket #38) with attorney Corkhill's signature. Atty. Corkhill

let lead counsel for petitioner's co-defendant do all the work

as he just signed off when asked and needed.

On numerous occassions the gov't. filed motions without

petitioner's attorney's consent in agreement with petitioner's

co-defendant's attorneys. Petitioner's attorney failed to ask

forinvestigative fee when petitioner's co-defendant's counsel

was awarded $3,000.00 in total. Also, a motion for continuance

was filed (See: Docket #38) by undersigned Atty. Boyce within

agreement attorney Corkhill for petitioner and the other attorneys

for co-defendants. This motion asking Judge Britt to continue

petitioner Murphy's case/trial because the (state district

attorney) indicated he will seek the death penalty for each

defendant. Judge Britt took 5 months to give an order and deny

Attorney's motion for continuance.

Around Nov. 1997, Atty. Corkhill along with other Atty.'s

(after only being in federal custody for 3 months)-reached out to

petitioner Murphy's (State Clerk of Beaufort County) requesting

to be the defendant's attorney for representation whenever

petitioner gets indicted by the state grand jury for the Death.

Penalty. (See: App. ( ).

On Nov. 2017, petitioner writes Judge Britt and sent him a

copy of the memo, along with a personal question, asking him about

his knowledge of the memo drafted to Mr. Thomas Payne (State

Deputy Clerk) by petitioner's attorney and others. Concerning the

representation of petitioner for the death penalty whenever the

grand jury decides to indict petitioner. Petitioner also let it

be known that for 13 months. he was unaware of such pending charges.

On Jan 2018, petitioner Murphy-the-n'-filed-a::-motion for

re-consideration to Judge Britt regarding the 2005 denial in hope

he'll view things different.

On April 2018, petitioner received a memo via text denying

petitioner's motion for re-consideration.

On May 2018, petitioner filed his Informal Brief with 4th

Cir. Court of Appeals without knowledge of showing cause for the

L

District Court denial, costly mistake.

On Sept. 11th 2018, 4th Cir. Court of Appeals denied

petitioner's motion based off of Judge Britt's ruling in 2005,

failure to show cause (Sept. 11th 2018).

* Issues Presented for Review *

and Arguments

Did the 4th Cir. Court of Appeals review how the District

Court erred in denying petitioner's §2255 claim based on

counsel's ineffective assistance, this claim is valid (?)

"Supporting Facts"

When considering the denial of a 28 U.S.C. §2255 motion to

vacate, the government is to review the legal conclusion DE NOVO.

See (U.S. v. Nicholson, 475 F.3d 241, 248(4th Cir. 200) Id. at

244. Petitioner ask this court to review for abuse of discretion

for not considering to grant an evidentiary hearing to resolve

an issue presented in a §2255 motion. See (Gordon v. Braxton, 780

F.3d 196, 1204(4th Cir.. 2015)).

Did the 4th Cir. Court of Appeals failure to recognize the

District Court!s abuse of it's discretion by clearly not

addressing petitioner's 5th and 6th Amendment claims of Due

Process violation and Ineffective Assistance of Counsel claim

which commits error law(?), Yrpetitioner expressly requesting

counsel to file Notice of—Appeal clearly shows the lack of

10

adequate legal advice to take a plea for *Life imprisonment*

without completely explaining the pro's and cons of going to

trial, and afterwards coersing petitioner into the plea

negotiation upon Iconviction tells petitioner there was nothing

to appeal.

i3) Why didn't the 4th Cir. recognize the appropriateness of a

Certificate of Appealability, for a claim that violated the

rights of Due Process and Effective Counsel.

"Supporting Facts"

Despite petitioner's asserting his Constitutional Rights,

petitioner was deprived of life and liberty without any

consideration! Any reasonable jurist would have found it debatable

whether such claim stated a valid claim for denial of a

Constitutional Right, and jurist of reason would have found the

question of cognizability debatable in the circumstances presented

here.

4) Counsel was Constitutionally Ineffective for failing to appeal

petitioner's sentence, and that an evidentiary hearing is

necessary to determine whether appeal was requested.

"Supporting Facts"

Due Process warrants that a hearing be held with actual proof

be introduced by the government that the relevant facts/contents

disqualifies petitioner from recieving a Certificate of

11

appealability. Petitioner's motion for re-consideration was

denied without full disclosure or reason stating denial or why

evidentiary was needed.

Relief Requested

In consideration of the foregoing, petitioner Murphy, urges

this Court (Supreme Court) grant this appeal in regards to a

C.O.A. and all other relief that's necessary, especially an

evidentiary hearing coupled with the facts that relief is

warranted.

12

* Memorandum in Support Motion *

filed on behalf of Boris Murphy

Case File # 4:97-CR-000252-BR

Pursuant to the Court's Order of March 8, 2018 and Sept. 11th

2018, petitioner respectfully submits this motion of memorandum

of facts and law *TO SHOW CAUSE* for a Certificate of Appealability

regaerding the 28 U.S.C. §2255 motion (D.E. #167) in order to

clearly establish the validity of petitioner's motion and to

*show cause* why petitioner's 28 U.S.C. §2255 is not time barred.

A jurist of reason would and have found it debatable whether such

claim states a valid claim for denial of constitutional right.

Rule 59(e) permits.a court to alter or amend a judgement. The

decision whether to alter or amend a judgement pursuant to

Rule 59(e)(2) states that further action after a non-jury trial.

After a non-jury trial the court may on motion amend finding for

opening of new judgement.

In light of (Jones v. U.S., 143 L.Ed.2d 311, 526 U.S. 277)

it is necessary to resolve all ambiguities in federal criminal

states in such fashion as to avoid violation of the priciple

that is unconstitutional. Petitioner Murphy asserts that right,

a right that was denied by the District Court, 4th Cir. Court of

Appeals. The Solicitor General has agreed to summary grants of

certorari in at least three cases (Story and Snipes) 6th Cir.

2014. See: (Ian Puraud v. United States, No. 13-6435) to remand

the cases back to the appealate court for further reviewing in

light of the position set forth.in the Solicitor General's

13

Response. In each of these cases, responses, the government has

asked that the cases be remanded to consider the waiver of

timeliness challenges.

The assessment of fact(s) that alter the congressional doctrine

of Judicial Procedure to deprive a "living man from life and

liberty without sufficient evidentiary hearing to determine the

weightiness of the facts that provide relief that is warranted."

Due Process warrants that (a) hearing be held with actual proof

introduced by the government that the relevant content disqualifies

petitioner for recieving a Certificate of Appealability. Petitioner

Murphy's motion for a (C.O.A.) was erroneously denied without

full disclosure or any reason for the denial of petitioner

securing (Certificate of Appealability) or evidentiary hearing.

Strickland v. Washington, 466 -U.S.- 668, provides the proper

framework for evaluating a claim that counsel was constitutionally

ineffective for failing to file a notice of appeal. A defendant

in a. criminal case therefore has a Sixth Amendment Right. to

effective assistance of counsel on direct-appeal. See: Evitts v.

Lucey, 469 U.S. 387, 406, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985);

Douglas v. California, 372 U.S.. 353, 83 S.Ct. 814 (1963)(an

accused is entitled to assistance of counsel in an appeal as a

matter of right): Bell v. Jarvis, 236 F.3d 149, 164(4th Cir. 2000).

In the instant case subjudice, petitioner Murphy's counsel

never crossed the requested avenue of filing a notice of appeal,

although petitioner Murphy directly and specifically instructed

counsel to do so.

*At that time when petitioner was within appellate proper

14

timeframe,* the Supreme Court had recently touched basis with

claims such as the instant claim asserted by petitioner Murphy.

Although these claims have been encountered by the Supreme

Court, none have reached the caliber of prejudice evidenced in

this case, that petitioner Murphy seeks to get vacated.

In Roe v. Lucio Flore-Ortega, No. 98-1441, decided February 23,

2000 the United States Supreme Court allowed Justice O'Connor, J.

to deliver the opinion, with all other Justices concurring in the

majority. The Court specifically noted:

As we have previously noted, "(no) particular set

of detailed rules for counsel's conduct can

satisfactorily take account of the variety of

circumstances faced by defense counsel." Id. at

688-689. Rather, courts must "judge the

unreasonableness of counsel's conduct on the

facts of the particular case, viewed as of the

time of counsel's conduct," Id. at 690... We have

long held that a lawyer who disregards specific

instructions from the defendant to file a notice

of appeal acts in a manner that is professional

unreasonable.." See Rodriguez v. United States,.

395 U.S. 327 (1969); cf. Figuero v. United States,

526. U.S. 23,2.8. (1999)("When counsel fails to file

a requested appeal, a defendant is entitled to

[a new] appeal without showing that his appeal

would likely have had merit").

The Court felt this was a necessary ruling because a defendant

who instructs counsel to initiate an appeal reasonably relies

upon counsel to file the necessary notice. For this very important

reason it is this appealant's position that counsel must definately

should have filed the notice of appeal upon petitioner's direct

15

and specific instruction. Even without instructions from the

petitioner, a plea resulting in a Life Sentence should always be

followed by an appeal challenging the voluntariness of the plea

when the offense charged is not punishable by Death. This Life

sentence was imposed upon a guilty plea of the petitioner where

counsel advised petitioner such a plea would yield a 25 year

sentence. It is feasible to now assert, "there is nothing to

appeal"(?) Petitioner Murphy asserts it is not! This Honorable

Court will also agree that such is not feasible as - well (today).

An appeal is warranted.

Petitioner Murphy's plea was involuntary and unintelligent

made on the sole condition of counsel's affirmative misadvice.

It is fair to contend that counseldid not file the notice of

appeal because the ineffective assistance of counsel claim would

only "highlight" counsel's deficient performance during

plea-forUmed negotiations, however, an attorney cannot "sacrifice

the evident prejudice of a client to spare such attorney's good

standing with the Bar Association."

The Blackstonian Curriculum specializes in the product of

responsibility for attorneys. Affirmative misadvice of counsel

should be brought to the attention of the courts when counsel is

solely responsible for the affirmative misadvice.

In Cronic, penson, and Robbins, the United States Supreme

Court held that the complete denial of counsel during a critical

stage of a judicial proceeding mandates a presumption of

prejudice because the "adversary process itself" has been rendered

"presumably unreliable." Cronic, supra, at 659. Id. Cronic, 466

16

U.S. 648 (1984); Penson, 488 U.S. 75 (1988); and Robbins, 528

u.s.---(2000).

* Petitioner

attempts to show cause,* regarding 28 U.S.C.

§2255 timeliness claims. 28 U.S.C. §2255(f)(4) allows a prisoner

the opportunity to file a §2255 motion within one year of the

date on which the facts supporting the exercise of Due Diligence.

Petitioner Murphy supported this claim based off of true facts

that District Court Judge declined to review...Ledezma-Rodriguez,

423 F.3d at 836. An Appellate Court reviews the District Court's

decision. n0t to hold .-- an evidentiary hearing for an abuse of

discretion. That standard was misleading in petitioner's review of

facts by the 4th Cir. Court of Appeals. To be entitled to invoke

the t.ueof.lirnitations contained in 28 U.S.C. §2255(f)(4), a

petitioner must .show existence of a new fact, while also

demonstrating that he has acted with diligence to discover the new

fact.

Petitioner Murphy demonstrated his newly discovered facts

then (2004) and (2017) to the Appealant Court, showing many

reasons for attorneyCorkhill's failure to file direct-appeal

based off his known ineffective assistance of counsel.

Based off of proof of record, petitioner Murphy pointed out

to Appealant Court that the District Judge's bias or prejudice

decision to withhold an order for five months so the state of

North Carolina can indict petitioner for the. Death penalty. The

denial of petitioner's §2255 motionwas done in less than 20 days

(by order) by Judge Britt, the district court judge, without

equitable tolling and evidentiary hearing.

17

* Equity Demands Review of Petitioner's Case *

In Holland v. Florida, 130 S.Ct. 2549, 2562(2010). the

Supreme Court recognized that Equitable tolling survived the

enactment of (A.E.D.P.A.). The decision whether to permit

equitable tolling is not rigid inquiry. The flexability inherent

in equitable procedures enables courts to meet new situations

that demand equitable intervention and to accord all relief

necessary to correct particular injustices. See: Jones v. United

States, 689 F.3d 621, 627(6th Cir. 2012). in Jones, the 6th Cir.

noted how difficult it is for incarcerated inmates to follow

rapidly changing Supreme Court cases and law, and found that the

'eifttly once made aware of favorable laws and facts

petitioner i~lig

detrimental to the case, Id. at 628. Here the petitioner filed his

motion within a year (with equitable tolling) of being made aware

of counsel failing to file for notice of appeal ... Solomon v. U.S.,

467 F.3d 928, 933-35(6th_Cir.)(Equitable tolling allowed if

petitioner lacked notice and constructive knowledge of deadline

and respondent prejudiced by delay.

Petitioner Murphy constantly asserts that lack of constructive

knowledge for delay, that's why petitioner enrolled in a legal

research class at *USP #1, Coleman Federal Penitentary.* See:

Certificate for Completion of Class. (Aug. 17, 2003).

*U.S. v. Gabaldon,* 522 F.3d 1121, 1126(10th Cir. 2008).

(Equitable tolling permitted because complete confiscation of

petitioner's legal material shortly prior to filing deadline is

extraordinary circumstance. See: Petitioner's Response (District

18

court judge's order) to show cause motion. Complaint of missing

legal material. Petitioner was dilligent and did not sit on his

rights, moreover, when considering equitable principles, this

Honorable Court may consider that the petitioner does not seek to

vacate the conviction itself. The government has not been harmed

in any fashion by petitioner Murphy's "extraordinarycircumstances"

that prevented him from adequately and timely filing his 28 U.S.C.

§2255 within- the confines of the statute set forth. Petitioner

however was harmed by his ignorance of legal developements and

attorney's ineffectiveness. See: "Reluctance to Resentence":

Courts, Congress and Collateral Review, Sarah French Russell, J.D.

91 N.C. L. Rev. 79. pgs. 141-158(2012)(arguing interest finality

should not be paramount in remanding, correction cases.)

Through no fault of my own, petitioner's opportunity for such

review did not arise until after the period inwhich to file a

direct-appeal had lapsed. Petitioner Murphy shall not be punished

by doing extra federal prison time which the law does not

countenance for this fact by the government. Acknowledging that a

defendant would likely be entitled to relief on direct-appeal but

not on timely filed Habeas Corpus motion, simply due to the timing

of the 4th Cir. Court of Appeals decisions, contributes to the

conclusion that denial of review operates a complete miscarriage

of justice.

.

.

.

The 4th Cir. Court of Appeals failed to recognize that they

perviously held that the futility of a petitioner's claim does not

constitute a circumstance external of my control, in light of

(Minter v. Beck, 230 F.3d 663-666(4th Cir. 2000)). However, the

19

decision in Minter preceeded the Supreme Court's

decisions in

(Holland v. Florida, 130 S.Ct. 2549, 2562(2010)). Without

prejudice intent, petitioner Murphy enlightens on the fact'that the

4th Cir. agrees that principles of equitable tolling are consistent

with the (A.E.D.P.A.'s) basic purposeof eliminating delays without

undermining basic Habeas Corpus principles and harmonizing the

statute with prior law, under which a petitioner's timeliness was

always determined under equitable priciples. Petitioner Murphy

determines that right more than so and, by no faults of his own

petitioner look,s forward to the Supreme Court to uphold the 4th

Cir. accountable.

Petitioner avers that his inability to adequately asses the

means of proceeding forward in litigation due to deficient

performance of counsel as well as legal advice pursuant to legal

developements which is an extraordinary circumstance that warrants

some flexibility on this court's (Highest Court in the Land) behalf

in order to accord all the relief necessary to correct this

particular injustice.

* Conclusion *

In consideration of the foregoing, petitioner Murphy urges

this Honorable Court, the Supreme Court of the United States to

grant Habeas Corpus relief to administer an evidentiary hearing to

couple the facts - of the records that concisely shows that Certificate

of Appealability is warranted.'

!4I

REASONS FOR GRANTING THE PETITION

The petitioner although be it so he is not an attorney

the fundamental aspects of the aforemention case stands at the

threshold of review ,where the issues independent of the courts

timeframes and procedural parameters must be adhered to, but

where the court fully recognizes that the unconstitutional

application of the representation of Corkhill illuminates the

violation of the same procedural parameters in place to avoid

the very same issues presented within the Certiorai of which now

comes before this court. Where the simple failure to withdraw plea

was defecient performance that falls b owtheprevailitignotm.r

In light of the excessive sentencing of life plus 300 months,

the failure to file notice of appeal, as of APRIL 2003,also

verified within the courts order of the 28 U.S.C. 2255 motion of

OCTOBER 1,2003. Both the abovemention issues constitutes deficient

performancesee;UNITED STATES V ALVEREZTAUTIMEZ 160 F3d 573 (9th

cir998) (COUNSEL FAILURE TO MOVE FOR WITHDRAWAL OF PLEA WAS 1N

INEFFECTIVE ASSISTANCE WHERE PLEA WAS NOT ACCEPTEDCUNTIL THE DAY

OF SENTENCING.PLEA COULD HAVE BEEN WITHDRAWN WITHOUT A SHOWING

OF A FAIR AND JUST REASON.) The coersion of CORKHiLLátisThdh

Murphy to accept the plea agreement with the statement of you

cant win and youare 26 and 'I want you be able to play with

your grandkids. Corkhills animated,loud and pushy style only

furthered the threátthat trial would result in.Corkhill closed

with that if you go to trial then you wiJil::recive life.

Ultimately coercing Murphy to plea to the very same sentence

and 300 months. see;BOYKIN V ALABAMA 395 U.S. 238,242 89 S.CT

CONT : REASONS FOR GRANTING THE PEFITION

1709 25 Led'2d 274 (1969) ( The plea was entered involuntarily

and made without knowledge of the circumstances of sentencing.5

This violates the rules of criminal procedure (Rule 11(c)(1

)(f) Where the mandatory minimum and the maximum of sentencing

penalty is to provided,including the effect of any special parole

or supervised reIeaseThis admonihment must be verbally given

by court prior to the acceptance of the plea.

This inaction of the court and the coersion of the attorney reccord

constites the waiving of the tolling issue and mandates this court

to vacate..-., plea and /or grant evidentiary hearing in review of the

totality of the surrounding ineffective assistance of counsel

issues. see; STRICKLAND V WASHINGTON 466 U.S. 668 S.CT. (1984).

(COERSIoN OF THE ACCEPTANCE OF PLEA AGREEMENT,EEFEICIENT

PERFORMANCE,FALLING BELOW THE PRVAILING NORM,AND CONFLICT OF INTEREST.)

• On NOVEMBER 4th 1997 it was apparent that CORKHILL WAS

eherently involved within the DEATH PENALTY process,it now well

known that Corkhill was definately invol?ed'further illuminIte

:tl

c.pnflict of interest, see; STRICKLAND V WASHINGTON 466

U.S 668 S.CT (1984)

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

11'~ / 2e919

2