                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 9, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 GEORGE CLIFFORD MURPHY,

               Petitioner - Appellant,                   No. 10-1350
          v.                                             (D. Colorado)
 LOU ARCHULETA and JOHN                     (D.C. No. 1:06-CV-01899-MSK-KLM)
 SUTHERS,

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Petitioner George C. Murphy, proceeding pro se, seeks a certificate of

appealability (“COA”) to enable him to appeal the denial of his 28 U.S.C. § 2254



      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
petition for a writ of habeas corpus alleging various infirmities in his Colorado

state convictions for sexual assault. To obtain a COA, Mr. Murphy must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Because

Mr. Murphy has not made such a showing, we deny him a COA and dismiss this

matter.



                                 BACKGROUND

      The following facts are taken from the district court’s recitation of the

facts, which Mr. Murphy does not dispute. On a late summer evening in 1999, the

victim of Mr. Murphy’s sexual assault, a nine-year-old girl referred to as “A.S.,”

went outside her house to look for her dog. At this time, her mother was drunk

and passed out on a bed inside the house. While A.S. was outside looking for her

dog, she encountered Mr. Murphy and another man known as Arnie or “Psycho.”

She later testified that both men took turns holding her down while the other

raped her. When A.S. returned to her house, she found her mother still passed

out, so A.S. did not tell anyone immediately about what had happened.

      Shortly after this sexual assault, A.S. moved in with Rick Lawler, a former

boyfriend of A.S.’s mother. Mr. Lawler’s sister, Michelle Teeter, began to notice

that A.S. displayed inappropriate behavior with Ms. Teeter’s children, including

trying to touch her “sons’ private areas and [kissing] . . . them and [hanging] on

                                         -2-
them.” Recommendation of Mag. J. at 3 (alterations in original). A.S. began to

complain that she experienced itching, burning and stinging in her vaginal area.

She also began to take five to eight showers each day, claiming that she “felt

dirty.” Id. A.S.’s strange behavior escalated and prompted Ms. Teeter to ask

A.S. if she had ever been touched inappropriately. A.S. did not respond

immediately, and she became fidgety and tried to change the subject. At first, she

only admitted that Psycho had touched her private parts. Later that day, while

Ms. Teeter, her family and A.S. were at an amusement park, A.S. became

hysterical, stating that she was seeing visions of her attackers. The next day, as

Ms. Teeter and her mother tried to talk to A.S., A.S. began to cry and eventually

admitted “that there wasn’t just one man, there was two, and they did put their

penis inside of her.” Id. She identified the second man as “George.” At the time

of the incident, A.S. only knew one person named George—i.e., Mr. Murphy.

      The police were summoned, and during the police investigation into the

incident, Detective Nancy Lee interviewed A.S. While A.S. was initially hesitant

to talk about what had happened, she told Detective Lee a story consistent with

the one she had told Ms. Teeter and her mother, including the fact that George

and Psycho had both raped her.

      After the interview, Detective Lee identified petitioner, Mr. Murphy, as the

individual named George. Mr. Murphy lived, at that time, in the area where the




                                         -3-
sexual assault had taken place. Ms. Lee put together a photographic lineup with a

picture of Mr. Murphy, and A.S. identified him as one of her abusers.

      Mr. Murphy was arrested and charged. At Mr. Murphy’s trial, A.S. was

unable to identify him because she did not want to look at him closely and

because his appearance had changed. For example, Mr. Murphy wore his long

hair in a ponytail at trial, and he appeared to have brown eyes, while A.S. recalled

that her abuser had blue eyes. In fact, it was confirmed that Mr. Murphy had blue

eyes. Despite the fact that A.S was unable to make an in-court identification of

Mr. Murphy, A.S. was able to testify that the man she identified in the

photographic lineup was the same man who had raped her, and there was no

dispute that the picture A.S. had identified from the lineup was, indeed, Mr.

Murphy.

      Also at trial, evidence was presented that A.S. had attempted to recant her

allegations of sexual abuse prior to trial. Despite those earlier recantations, A.S.

testified at trial that Mr. Murphy and Psycho had sexually assaulted her, as she

had previously stated to Ms. Teeter, A.S.’s mother and Detective Lee. A.S.

explained that her attempts to recant the allegations were due to her fear of

testifying at trial and her fear of being taken out of her home.

      The jury found Mr. Murphy guilty of first-degree sexual assault and sexual

assault of a child by use of force, in violation of Colo. Rev. Stat. 18-3 §§ 402-

-405. He was sentenced to concurrent twelve and sixteen year sentences of

                                          -4-
imprisonment. Mr. Murphy filed an appeal, which the Colorado Court of Appeals

(“CCA”) denied. People v. Murphy, No. 99CA1759 (Colo. Ct. App. Jan. 18,

2001) (unpublished) (“Murphy I”). The Colorado Supreme Court denied

Mr. Murphy’s petition for a writ of certiorari. Murphy v. People, No. 01SC159

(Colo. May 29, 2001) (unpublished).

      Mr. Murphy also pursued postconviction relief in state court. In July 2003,

Mr. Murphy filed a motion pursuant to Colo. Crim. P. 35(c), in which he

primarily argued that his trial counsel was ineffective. The trial court held an

evidentiary hearing and denied him relief. The CCA affirmed. People v. Murphy,

No. 04CA0362 (Colo. Ct. App. Dec. 22, 2005) (unpublished) (“Murphy II”). On

further appeal, the Colorado Supreme Court declined to grant certiorari. Murphy

v. People, No. 06SC191 (Colo. June 19, 2006) (unpublished).

      On September 25, 2006, Mr. Murphy filed the instant action in the district

court, raising three claims for relief, two of which are related claims of

ineffective assistance of counsel: 1

      Claims I, III        Counsel’s defense at trial and conflict of interest
                           constitute ineffective assistance of counsel in
                           violation of the Sixth and Fourteenth
                           Amendments.
      Claim II             The prosecution presented false testimony and
                           improper evidence at trial and there was
                           insufficient evidence to convict [Mr. Murphy] in
                           violation of the Fourteenth Amendment.

      1
         The matter was referred by the district court to a magistrate judge for an
initial recommendation.

                                          -5-
Recommendation of Mag. J. at 5. The magistrate judge noted that Mr. Murphy

also included an argument concerning the sufficiency of the evidence.

      The magistrate judge concluded that portions of claims I and II were not

exhausted and, as such, were procedurally barred. These specific claims were the

contention that Mr. Murphy’s appellate counsel was ineffective for failing to file

a notice of appeal on the issue of conflict of interest, 2 and the claim that the

prosecution presented false testimony and improper evidence at trial.

Accordingly, the magistrate judge declined to address them further.

      The magistrate judge did, however, address Mr. Murphy’s remaining

claims, which the judge characterized as follows: “(1) Counsel did not

adequately represent [Mr. Murphy] at trial; (2) Counsel ‘labored under a conflict

of interest,’ . . . and (3) There was insufficient evidence to convict [Mr. Murphy]

of the sexual assault.” Id. at 10.

      With respect to the adequacy of Mr. Murphy’s counsel’s representation, the

magistrate judge noted that Mr. Murphy alleged inadequacy in several respects:

that counsel had failed to investigate and/or present the defense that no crime had,

in fact, occurred; counsel failed to investigate and/or introduce exculpatory

evidence; and counsel failed to communicate his defense strategy to Mr. Murphy.


      2
        The claimed conflict of interest was based on the argument that Mr.
Murphy’s counsel labored under a conflict, until Mr. Murphy’s conviction became
final, because counsel concealed his knowledge of a pro se motion filed by Mr.
Murphy to replace him.

                                           -6-
The magistrate judge summarily dismissed Mr. Murphy’s third claimed

inadequacy (failure to communicate his defense strategy to Mr. Murphy),

concluding that, as the CCA held in the appeal of his postconviction filing,

Mr. Murphy “failed to allege sufficient evidence that his counsel was neglectful

or that the alleged lack of communication impacted the trial or counsel’s

representation.” Id. at 12.

      The Magistrate Judge rejected the other two claims of inadequacy, after

reviewing their merits. More specifically, applying the requisite deferential

standard under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),

it found the CCA’s disposition of these claims was not contrary to or an

unreasonable application of Supreme Court precedent, nor did the CCA

unreasonably apply the facts and evidence available to it: “To summarize, the

CCA’s decision that trial counsel provided effective assistance is not contrary to,

nor did it involve[,] an unreasonable application of federal law, nor does it

represent an unreasonable determination in light of the facts presented in the state

court proceeding.” Id. at 18.

      The magistrate judge also rejected Mr. Murphy’s remaining claims (that

Mr. Murphy’s counsel labored under a conflict of interest 3 which impaired his

ability to represent Mr. Murphy, and that there was insufficient evidence to

convict Mr. Murphy of sexual assault. The magistrate judge rejected the conflict

      3
          See n.2, supra.

                                         -7-
of interest claim, stating, “[a]t most, Respondents argue that Applicant asserts a

difference of opinion with his trial counsel that led to the motion’s [to replace

counsel] filing. Regardless of the characterization, the Court notes that

disagreements regarding trial strategy or tactics and personality disputes do not

amount to a constitutionally recognized conflict of interest.” Id. at 19. The

magistrate judge characterized Mr. Murphy’s “primary argument” as claiming that

“the victim’s inability to positively identify him as her attacker in court precluded

the jury from finding him guilty.” Id. at 20. The magistrate judge also noted,

however, that Mr. Murphy claims that a “lack of physical evidence linking him to

the crime amount[s] to insufficient evidence to find him guilty.” Id.

      Turning to the merits of that argument, the magistrate judge found “[u]pon

review of the record, . . . that despite the issues with the in-court identification,

the victim’s earlier recantation, and lack of physical evidence, there was

sufficient evidence for a reasonable juror to conclude that [Mr. Murphy] sexually

assaulted the victim.” Id. at 22. Regarding the physical evidence issue, the

magistrate judge concluded that, “despite the lack of physical evidence, the

victim’s genitals were not necessarily inconsistent with the alleged abuse and her

dramatic emotional and behavioral changes after the incident further corroborate

that the assault did occur.” Id. The magistrate judge summarized once again,

“the CCA’s decision on the sufficiency of the evidence is not contrary to, nor did

it involve an unreasonable application of, federal law, nor does it represent an

                                           -8-
unreasonable determination in light of the facts presented in the state court

proceeding.” Id.

      After considering Mr. Murphy’s objections to the magistrate judge’s

recommendation, the district court issued a minute order adopting the

recommendation, denying Mr. Murphy’s habeas petition and also denying a COA.

Additionally, the district court denied Mr. Murphy leave to appeal in forma

pauperis.

      Mr. Murphy seeks a COA to enable him to appeal that decision, arguing:

(1)“[n]o District Judge, or Magistrate has ever addressed Plaintiff’s motion

entitled (Memorandum/Brief in support of Actual Innocence Forensic

Challenge).” Appellant’s Op. Br. at 1; (2) in his state collateral attack, his

counsel failed to raise the potentially successful claim that the “[v]ictim’s

‘Hymen’ was wholly ‘INTACT’ indicating or establishing that alleged ‘VICTIM’

was Actually a ‘VIRGIN’ and ‘NOT’ a ‘VICTIM’ of Gang Rape or Sexual

Assault.” Id. at 1-1(b); 4 (3) both the trial judge and the district attorney “lacked

authority from inception[] to bring said charges or enter said Void

Judgment/order(s) . . .; therefore said court lacked subject matter or In-Personam

Jurisdiction of the Plaintiff.” Id. at 2(b); (4) his counsel was ineffective; and (5)

the “Jury was not properly instructed[,] or if properly instructed they were not

      4
        Mr. Murphy actually argues that “[a]ll prior Courts” have failed to address
the issue of the condition of A.S.’s genital area when she was medically
examined.

                                          -9-
properly informed of All Exculpatory Evidence/Results available to the defense.”

Id. at 3.



                                    DISCUSSION

       Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make

“a substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). Thus, when the district court has ruled on the

merits of the prisoner’s claims, he must show that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Id. Where the district court ruled on procedural grounds, a COA may be granted

when the petitioner shows “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and . . .

whether the district court was correct in its procedural ruling.” Id.

       To the extent Mr. Murphy wishes to raise issues addressed in the lengthy

and thorough recommendation of the magistrate judge, which the district court

adopted in whole, we deny Mr. Murphy a COA, for substantially the reasons

stated in that recommendation. Those issues are the ineffective assistance of

                                          -10-
counsel claim, and the claim about physical evidence linking Mr. Murphy to the

sexual assault. The magistrate judge/district court expressly held that the

condition of the victim’s genitals did not amount to, as Mr. Murphy repeatedly

claims, clearly exculpatory evidence. Indeed, Mr. Murphy raised this argument in

state court as well, and the medical examination materials to which he presumably

refers are not the unambiguous evidence that no sexual crime occurred. 5

      Mr. Murphy’s other issues are either newly raised on appeal, or simply so

conclusory and vague as to be incapable of review. His argument about the

“jurisdiction” of the trial court and/or the prosecutor was denied by the district

court below, for reasons with which we completely agree. Mr. Murphy’s

argument about jury instructions is simply too vague to consider, nor does he

appear to have raised it before the district court. “Issues not raised in the district

court will not be considered for the first time on appeal when there is no showing

of an impediment to the appellant that precluded his raising the issue.” United

States v. Chee, 514 F.3d 1106, 1115 (10th Cir. 2008). It certainly is not grounds

for issuing a COA.



      5
       This general claim includes the issue Mr. Murphy denominates as his first
issue: his allegation that no one has ever addressed his memorandum/brief
regarding his actual innocence claim. In that brief, Mr. Murphy makes the same
argument he has made repeatedly about A.S.’s genitals and the condition of her
hymen, as referred to in the medical examination materials. This claim has been
addressed numerous times, by numerous courts. Mr. Murphy provides no basis
for a new, independent forensic exam in this case.

                                         -11-
      To sum up, the district court, adopting the magistrate judge’s

recommendation, found that certain of Mr. Murphy’s claims were procedurally

barred, and the remaining claims were meritless. With respect to all of those

claims, we have carefully reviewed the magistrate judge’s recommendation, the

district court’s order adopting that recommendation, and the entire record, and we

cannot see how reasonable jurists would find any of the district court’s

determinations debatable or wrong.



                                 CONCLUSION

      For the foregoing reasons, we DENY Mr. Murphy a COA and DISMISS

this matter. We also DENY his request to proceed on appeal in forma pauperis.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -12-
