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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA, 

vs. 3:03cr147/RV; 3:07cv340/RV/MD

3:03cr140/RV; 3:07cv338/RV/MD

ROBERT M. MURPHY

_____________________________/

ORDER GRANTING CERTIFICATE OF APPEALABILITY 

This cause is before the court on defendant’s applications for certificates of

appealability in his appeal of the denial of 28 U.S.C. § 2255 relief in the above-styled cases.

(Case 3:03cr140/RV, doc. 442/443, case 3:03cr147, doc. 22/23). Unless a certificate of

appealability is issued, the defendant may not take an appeal from a final order denying

Section 2255 relief. See 28 U.S.C. 2253(c)(1)(B). Such a certificate may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039 (2003). If a

certificate issues it must indicate the issue or issues which satisfy this standard. §

2253(c)(3).

The standard for granting a certificate of appealability is “materially identical” to the

pre-AEDPA standard for granting a certificate of probable cause. Slack v. McDaniel, 529

U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Hardwick v. Singletary, 126 F.3d 1312,

1313 (11th Cir. 1997) (citing 28 U.S.C. § 2253(c)(2) and Barefoot v. Estelle, 463 U.S. 880,

893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983)). The Court in Barefoot found the

following statement “cogently sums up this standard:” 

“In requiring a ‘question of some substance', or a 'substantial showing of the

denial of [a] federal right', obviously the petitioner need not show that he

should prevail on the merits. He has already failed in that endeavor. Rather,

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he must demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues [in a different manner]; or that the

questions are ‘adequate to deserve encouragement to proceed further.’” 

Id., n. 4 (citations omitted); see also, Miller-El, supra; Slack, supra; Eagle v. Linahan, 279

F.3d 926, 935 (11th Cir. 2001); Weeks v. Jones, 52 F.3d 1559, 1574 (11th Cir. 1995), cert.

denied, 514 U.S. 1104 (1995) (quoting Barefoot); United States v. Rocha, 109 F.3d 225,

227 n.2 (5th Cir. 1997). “The primary difference between the two certificates is that a COA

must specify on its face the issues on which the petitioner has been granted leave to

appeal.” Eagle, 279 F.3d at 935. The COA determination under § 2253(c) requires an

overview of the claims in the habeas petition and a general assessment of their merits.

Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. For claims defeated on the merits, the

petitioner seeking a certificate of appealability must establish that “reasonable jurists would

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

279 F.3d at 935 (citing Slack, 529 U.S. at 484, 120 S.Ct. at 1604). If a claim has been

disposed of on procedural grounds, in order for a certificate of appealability to be granted,

it must be shown that reasonable jurists 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. (citing Franklin v. Hightower, 215 F.3d 1196, 1199 (11th

Cir. 2000) (quoting Slack, 529 U.S. at 483, 120 S.Ct. at 1604)); Gonzalez v. Secretary of

Department of Corrections, 317 F.3d 1308, 1312 (11th Cir. 2003). The Supreme Court has

further explained:

A prisoner seeking a COA must prove “‘something more than the absence

of frivolity’” or the existence of mere “good faith” on his or her part. Barefoot,

supra, at 893, 103 S.Ct. 3383. We do not require petitioner to prove, before

the issuance of a COA, that some jurists would grant the petition for habeas

corpus. Indeed, a claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.

Miller-El, 537 U.S. at 338, 123 S.Ct. at 1040.

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 1Defendant pleaded guilty to an indictment in the controlled substance case and waived

indictment and pleaded guilty to an information in the money laundering case. (Doc. 258 at 25-29).

Case No: 3:03cr147/RV; 3:03cv340/RV/MD

Defendant was charged in case 3:03cr140/RV with conspiracy to possess with intent

to distribute cocaine, and in case 3:03cr147/RV with money laundering. Represented by

retained counsel Michael Griffith, he entered a simultaneous plea of guilty in both cases on

December 12, 2003.1

 With respect to the conspiracy charge, defendant stated at

rearraignment that he understood the charge and had fully discussed it with counsel. (Doc.

258, at 22-24). The agreement signed by the defendant acknowledged that the conspiracy

involved five kilograms or more of cocaine. (Id. at 34). With respect to the money

laundering charge, defense counsel indicated that he had discussed the contents of the

plea agreement with his client in detail, although defendant had not seen the actual

information before that date. (Id. at 25). Defendant indicated his intent to plead guilty to

this charge, and stated that he understood the charge. (Id. at 28-29). When asked

whether he had fully discussed the charge with counsel, defendant asked for another

minute to discuss something with his attorney, then told the court that he was guilty of

cashing checks that were the proceeds of illegal activity at the Sandshaker. (Id. at 29-30).

He reiterated to the court that he understood the charge and that counsel had made It clear

to him, and counsel also explained what he had discussed with his client. (Id. at 31, 46).

Counsel told the court that he had estimated that his client was facing 20 years to life

imprisonment, although there was no guarantee what the sentence would be. (Id. at 42).

Finding the defendant to have been fully informed, the court accepted the guilty plea. (Doc.

258 at 55).

Defendant was sentenced on April 28, 2004. At sentencing, the court noted that

defendant had an offense level of 37 and a criminal history category of I, which resulted in

a guideline range of 210 to 262 months. (Doc. 367 at 5). Counsel gave a lengthy

statement to the court setting forth the defendant’s unfortunate circumstances (doc. 367

at 8-11), and then the defendant himself read a statement he had written to the court. (Id.

at 11-14). The Assistant United States Attorney addressed the court with respect to

defendant’s cooperation and the 5K1 motion that had been filed, and the court sentenced

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defendant to a term of 90 months imprisonment. (Id. at 17). In doing so, the court noted

that “the guideline range as calculated did not take into account the otherwise applicable

safety valve which would have reduced [defendant’s] sentence significantly but for the

leadership role that otherwise applies in this case.” (Id. at 17). No fine was imposed due

to the defendant and his wife forfeiting property estimated at approximately one and a half

million dollars. (Id. at 18). Judgment was entered on April 29, 2004, and defendant did not

appeal. On May 10, 2007, defendant’s sentence was further reduced to only 66 months

after the government filed a Rule 35 motion. (Doc. 434).

On August 3, 2007, defendant filed identical § 2255 motions in the above-styled

cases. He claimed that counsel’s representation was constitutionally ineffective in that

counsel failed to get inaccurate information regarding his guideline level removed from the

PSR, that counsel may have operated under a conflict of interest due to an ongoing

fiduciary relationship with one of the alleged co-conspirators, that counsel had “conflicting

motivations” as to his reasons for representing the defendant, that defendant “remain[s]

unconvinced” that he is guilty of money laundering, and that his right of allocution was

compromised because counsel delivered his statement. The court denied the motions as

untimely, as they had been filed more than one year from the date the judgment of

conviction became final. 

Defendant now seeks a certificate of appealability based on the recently decided

case of Ferreira v. Secretary of the Department of Corrections, 494 F.3d 1286, 1292-93

(11th Cir. 2007). The Eleventh Circuit had initially held in considering a § 2254 application,

that when a petitioner who had been resentenced challenged only his underlying conviction

in a habeas petition, the one-year statute of limitations in AEDPA ran from the date the

conviction became final, regardless of when the petitioner’s corrected sentence became

final. Ferreira v. Sec’y, Dept. Of Corr., 183 Fed.Appx. 885 (11th Cir. 2006). After that

opinion was vacated and remanded for further consideration by the Supreme Court in light

of Burton v. Stewart, __ U.S. __, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007), the Eleventh

Circuit held that AEDPA’s statute of limitations begins to run from the date both the

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conviction and the sentence the petitioner is serving at the time he files his application

become final, because judgment is based on both the conviction and the sentence.

Previously, it would not have been unreasonable to assume that the defendant’s

conviction became final in May of 2004 after the time for filing a direct appeal of his

conviction lapsed, and that the time for collateral attack expired one year later. However,

the potential implication of the holding in Ferreira is that any alteration to a defendant’s

original sentence, including the granting of a Rule 35 motion, even years later, could

essentially “re-start” the AEDPA limitations period, re-opening the original conviction and

sentence to collateral attack. The court thus finds that a certificate of appealability should

issue on the following question: Whether granting a defendant a sentence reduction

pursuant to Rule 35 constitutes a resentencing that re-starts the AEDPA time clock,

allowing a defendant to collaterally attack his original conviction and sentence. 

It is therefore ORDERED:

Defendant’s request for a certificate of appealability (doc. 442, 22) is GRANTED for

the issue set forth above. 

DONE AND ORDERED this 22nd day of October, 2007.

 /s/ Roger Vinson 

 ROGER VINSON

 Senior United States District Judge

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