     Case: 19-40741      Document: 00515167929         Page: 1    Date Filed: 10/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 19-40741                        October 22, 2019
                                                                           Lyle W. Cayce
Consolidated with 19-40755                                                      Clerk


In re: JULIUS JEROME MURPHY,

               Movant



             On Motion for Authorization to File Successive Petition
                         for Writ of Habeas Corpus in the
           United States District Court for the Eastern District of Texas
                              USDC No. 5:19-CV-112


Before HO, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Julius Jerome Murphy was convicted of capital murder and sentenced to
death in August 1998. He now seeks authorization to file a successive petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2244(b)(2)(B). For the
reasons explained below, Murphy’s motion for authorization is DENIED.
       On September 18, 1997, Julius Murphy, Chris Solomon, Javarrow
Young, Christina Davis, Marie Woods, Elena DeRosia, and Philip Schute
gathered at Murphy’s house where they drank alcohol and smoked marijuana. 1


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1In his petition, Murphy alleges the blunt he smoked was “wet,” meaning it had been
dipped in embalming fluid, which often contains PCP, causing hallucinations, delusions,
disorientation, and loss of consciousness.
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Thereafter, the group, heading to Texarkana, split up in two separate cars –
Murphy, Solomon, Davis, and Woods were in one car, while Young, DeRosia,
and Schute were in the other. The two cars pulled over at a gas station, and
Solomon, who had a gun in the glove compartment of his car, said that he saw
a man who was having car trouble and suggested going over to “jack him.”
Young, whose child was in his car at the time, did not want to be involved, so
he drove to a Waffle House across the Interstate. Solomon drove his car back
to where the stranded man – Jason Erie – was and helped Erie jump his car.
Solomon then got back into his own car, and Erie came over and gave him five
dollars for his help. After Erie returned to his car, Woods took Solomon’s gun
from the glove compartment and handed it to Murphy. Murphy and Solomon
exited the vehicle and gunshots followed. Erie had been robbed and shot in the
head and later died from that gunshot wound. Murphy, Solomon, and Woods
were apprehended by police, and Murphy and Solomon were charged with
capital murder. The State’s only two fact witnesses who testified against
Murphy at his original trial were Javarrow Young and Christina Davis.
      After Murphy was convicted by a jury of capital murder and was
sentenced to death, he challenged his conviction and sentence in state and
federal court. In the instant motion, Murphy seeks authorization to file a
successive petition in the district court alleging the district attorney’s office
failed to disclose threats of prosecution and promises of leniency to its two key
witnesses, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972). Specifically, he alleges the State threatened
to charge Young and Davis with murder and conspiracy to commit murder if
they did not testify against Murphy; and, Murphy obtained affidavits from
Young and Davis to that effect. Prior to filing this motion in our court, Murphy
brought his Brady and Giglio claims to Texas state court. After the TCCA
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granted permission for Murphy to file a successive state habeas petition, the
trial court held an evidentiary hearing on the Brady and Giglio claims and
found the State’s evidence to be more credible than Murphy’s. 2 Accordingly,
the TCCA denied Murphy’s successive state habeas petition.
       For our court to grant Murphy permission to file a successive habeas
petition, he must make a prima facie showing that:
       (i) the factual predicate for the claim could not have been
       discovered previously through the exercise of due diligence; and (ii)
       the facts underlying the claim, if proven and viewed in light of the
       evidence as a whole, would be sufficient to establish by clear and
       convincing evidence that, but for constitutional error, no
       reasonable factfinder would have found the applicant guilty of the
       underlying offense.


§ 2244(b)(2)(B). A prima facie showing requires “a sufficient showing of
possible merit to warrant a fuller exploration by the district court . . . [and if
it] appears reasonably likely that the application satisfies the stringent
requirements for the filing of a second successive petition” then the petition
should be granted. Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir.
2001). As this court in Reyes-Requena noted, the requirements for filing a
successive petition are stringent. Id.
       Simply put, the record in the instant case does not reflect that Murphy
exercised due diligence in investigating the truthfulness of Davis’ and Young’s
testimonies to support his Brady and Giglio claims, nor that this newly
discovered information proves, by clear and convincing evidence, that but for
the prosecution’s misconduct, no reasonable factfinder would have found


       2Neither Young nor Davis were present at the evidentiary hearing, despite Murphy’s
attempts to subpoena them. The trial court relied solely upon their affidavits in determining
the witnesses’ credibility. Conversely, the State’s witnesses were present and available for
cross examination.
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Murphy guilty. As for due diligence, Murphy’s trial concluded in 1998 and the
Davis and Young affidavits came to light in 2015. Murphy offers no evidence
why the “factual predicate” for their claims of witness intimidation could not
have been discovered through due diligence during that seventeen-year
interval. Indeed, the record reflects that Murphy long ago had every reason to
explore such claims—for example, Young testified at trial that the police
threatened him before he gave his initial statement. See Johnson v. Dretke, 442
F.3d 901, 911 (5th Cir. 2006) (explaining that a petitioner cannot show due
diligence if he had notice “of the existence of the factual predicate and of the
factual predicate’s ultimate potential exculpatory relevance”). Moreover, even
with the recanting testimonies of Davis and Young, Murphy can not
demonstrate facts indicative of his innocence. See In re Davila, 888 F.3d 179,
186 (5th Cir. 2018); see also Summers v. Dretke, 431 F.3d 861, 872 (5th Cir.
2005) (noting this circuit views recanting affidavits with “extreme suspicion”). 3
Additionally, Murphy offers no case law supporting the proposition that the
alleged prosecutorial misconduct would lead any reasonable factfinder to
discredit his own oral and written confessions in which he admitted to
murdering Erie. Specifically, Murphy “confessed to the crime in a written
statement. Afterwards, when being booked into jail, [Murphy] stated, ‘I bet
y’all never had anybody stand up and say straight out that he killed’ someone.”
Ex parte Murphy, 560 S.W.3d 252, 253 (Tex. Crim. App. 2018) (Alcala, J.,
dissenting), cert. denied sub nom. Murphy v. Texas, 139 S. Ct. 2638 (2019).
Because Murphy has not satisfied the stringent requirements under 28 U.S.C.




       3 Notably, neither Young nor Davis were eye witnesses to the shooting, and their 2015
affidavits do not provide direct evidence or support for their recanting statements which
would require a reasonable factfinder to conclude that Murphy was not the shooter.
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§ 2244(b)(2), his motion for authorization to file a successive petition for a writ
of habeas corpus is DENIED.




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