IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SEAN D. MURPHY, 

 

 Petitioner, CASE NO. 2:14-CV-1706 

 CRIM. CASE NO. 2:11-CR-010(1) 

 v. JUDGE GEORGE C. SMITH 

 MAGISTRATE JUDGE DEAVERS 

UNITED STATES OF AMERICA, 

 Respondent. 

OPINION AND ORDER 

 On May 11, 2016, the Magistrate Judge issued a Report and Recommendation

recommending that the Motion to Vacate under 28 U.S.C. 2255 (ECF No. 184) and Motion for

New Trial (ECF No. 185) be denied and that this action be dismissed. (ECF No. 216). Petitioner 

has filed an Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 217). 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that 

follow, Petitioner’s Objection (ECF No. 217) is OVERRULED. The Report and

Recommendation (ECF No. 216) is ADOPTED and AFFIRMED. The Motion to Vacate under

28 U.S.C. 2255 (ECF No. 184) and Motion for New Trial (ECF No. 185) are DENIED. 

Petitioner’s request for an evidentiary hearing is DENIED. This action is hereby DISMISSED. 

 Petitioner’s request for a certificate of appealability is DENIED. 

 This case involves Petitioner’s convictions after a jury trial on one count of conspiracy to 

transport merchandise and money in interstate commerce, and one count of transporting 

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merchandise and money in interstate commerce. (See ECF No. 178).1 The Court imposed an 

aggregate term of 156 months imprisonment. (ECF No. 175). On November 19, 2014, the Sixth 

Circuit affirmed the sentence and judgment of this Court. (ECF No. 193). In his Motion to 

Vacate under 28 U.S.C. 2255, Petitioner asserts that prosecution witness Robert Doucette 

committed repeated material perjury (claim one); that the government knowingly presented such 

perjured testimony (claim two); that he is actually innocent (claim three); that he was denied the 

effective assistance of counsel (claim four); that the government violated Brady v. Maryland, 

373 U.S. 83 (1963) (claim five); and that he was denied a fair trial based on cumulative error 

(claim six). Petitioner also has filed a related motion for a new trial pursuant to Rule 33 of the 

Federal Rules of Criminal Procedure, in which he claims that he has obtained newly discovered 

evidence establishing that prosecution witness Robert Doucette lied and reflecting Petitioner’s 

innocence of the charges. The Magistrate Judge recommended dismissal of Petitioner’s motion 

for a new trial, concluding that Petitioner had failed to present newly discovered evidence 

justifying a new trial and the record failed to reflect the existence of material exculpatory 

evidence supporting Petitioner’s claim of innocence. The Magistrate Judge further 

recommended dismissal of Petitioner’s § 2255 claims on the merits. 

 Petitioner objects to all of the Magistrate Judge’s recommendations. He again raises all 

of the arguments that he previously presented. Petitioner objects to the Magistrate Judge’s 

conclusion that documents he submitted in support of his motion for a new trial do not constitute 

                                                            

1 On March 27, 2013, the United States Court of Appeals for the Sixth Circuit dismissed 

Petitioner’s convictions on Counts 2 and 3 of the Indictment and remanded the case for resentencing, but otherwise affirmed the judgment of this Court. United States v. Murphy, 518 F. 

App’x 396, unpublished, 2013 WL 1224092 (6th Cir. 2013). 

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newly discovered evidence that he could not have earlier obtained.2 Petitioner argues that he 

could not earlier have obtained such evidence because he did not know that Doucette would lie 

                                                            

2

 Petitioner has also included a document which appears to be a summary of an interview by 

private investigator Richard E. Ferreira, with Robert Doucette on May 26, 2015. (ECF No. 217, 

PageID# 2955-57). The report indicates, in relevant part, as follows: 

Q. In your testimony, you testified that you did not stay at a Hotel on Sunday, 

January 18, 2009, after the Brinks burglary was completed, and that the entire 

Crew drove directly from the burglary, back home, without having stood over at 

any hotel or motel – Seeing that the Comfort Inn records for that date, show that a 

Mr. William Palavacini had stood [sic] at the hotel from January 18th, -to- January 

19th,2009, and that the Police has [sic] seized a Massachusetts Driver’s license 

from Murphy’s home, in the name of: William Palavacini, would you be able to 

say for certain that the crew had not stood overnight at the Hotel, after having 

completed the Brink’s Burglary? 

A. To be honest with you, I guess I[] have to say that it is possible, because by 

the time we had completed the Burglary, I had been awake for at least 36 straight 

hours without sleep, and I can[] remember just collapsing after we were done, so 

I’d have to tell you that it was possible that we had stood at a motel overnight, but 

that if we did, I had lost my memory of it. 

Q. Whereas you had testified that the Crew had trouble starting a Budget Rental 

Truck in the Hotel Parking lot, on the morning of the Burglary – January 17th, 

2009, and that it had taken 1 to 2 hours to drive from the Hotel Parking lot to the 

Pennsylvania Storage Facility, -- AND whereas the Map Quest directions clearly 

indicate that the distance to travel from the hotel Parking lot – to—the 

Pennsylvania storage Facility would take no more than 2-5 minutes to travel, is it 

possible that you were wrong in stating that it took 1-2 hours to travel? 

A. Ye[a]h, like I told you, everything was just happening quickly, I was 

extremely tired, nervous, and scared, cause I had never done anything like this 

before, so, I guess I could have been wrong in stating that it would have taken 1-2 

hours to travel from the Hotel to the Storage Facility. You also gotta realize that 

within a short period of time, after the burglary, that the FBI showed up at my 

door, to question me about this Burglary. . . and I wasn’t about to try and lie to 

them. . . so I had to tell them what I remembered at that time. 

Q. In your testimony, you also stated that Joe Morgan had rented the Storage Bin 

at U-Haul in Lynn, Ma., yet, the records indicate that a George Bogart had rented 

Fin #90 on 01/23/2009, and a video record had been summonsed to show who the 

person was that actually rented the Bin #90, which depicts Robert You – Doucette 

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until the third day of trial, did not know the name of the hotel where he and co-defendants stayed 

after the burglary, and because his private investigator failed to perform the tasks requested by 

Petitioner during trial. Petitioner did not request additional time to obtain such evidence, 

because he did not believe the Court would grant such a request. Petitioner objects to the 

Magistrate Judge’s conclusion that nothing in the record lends credibility to his claim that he is 

innocent of the crimes charged or calls into question the substantial evidence of guilt. Petitioner 

argues at length that he has produced evidence indicating that Doucette lied and that Petitioner 

did not cross state lines or conspire to do so, thus establishing his innocence. Petitioner argues 

that the Declaration of Anthony Moschopoulos (indicating that Doucette stated that he regretted 

lying) and Declaration of Joseph M. Morgan (verifying Petitioner’s alleged version of the events 

at issue), must be considered as significant evidence corroborating his claims and an indication 

that that Doucette has recanted. Petitioner objects to the Magistrate Judge’s conclusion to the 

contrary. Petitioner disputes that other evidence submitted at trial corroborates Doucette’s 

testimony indicating Petitioner’s guilt and requests that Doucette’s testimony be considered in its 

entirety. 

                                                                                                                                                                                               

at the Service/Sales Desk, whereby George Bogart’s Name was signed as the 

person renting this Bin. How would you explain this? 

A. I didn’t sign for anything. I walked in there with Joe Morgan to rent the Bin, 

and Joe Morgan signed the Paper-work, Not Me, I can only guess that Joe Morgan 

had apparently written down Bogart’s Name, as being the person renting the Bin, 

I never looked at the form that Joe was filling out, so I never actually seen who’s 

name was written on the rental form, soooo, I guess I could have been wrong 

about this, too. I’m just telling you the truth of the matter as I remember it, I’ve 

got nothing to hide anymore, I feel badly for Sean, but I’m just trying to make 

something of my life, starting all over again. 

(PageID# 2955-56).

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 Petitioner also objects to the Magistrate Judge’s recommendation of dismissal of his § 

2255 claims. He argues that the record establishes that his attorney improperly acted against his 

interest during trial in regard to the mailing of a letter to prosecution witness David Nassor and 

denied him the effective assistance of counsel by instructing the defense investigator Gary 

Phillips to cease investigations on the case prior to trial. Petitioner again argues that it was solely 

through the fault of defense counsel that he was unable to obtain information regarding the 

location of an Ohio storage facility defendants used to store proceeds of the Brinks burglary 

which, he contends, would have established his innocence. Petitioner also complains that his 

attorney told the jury, during voir dire, that he was going to make mistakes. 

 On the sixth day of trial, Attorney Graeff, acting as stand-by counsel, advised the Court 

that Petitioner had requested him to send a letter to prosecution witness David Nassor located at 

the Delaware County jail, containing questions regarding Nassor’s upcoming trial testimony. 

Transcript (filed under seal) (ECF No. 161). The defense investigator had refused to mail the 

letter. (PageID#2219). Attorney Graeff did not feel that he could, within ethical bounds, mail 

the letter on Petitioner’s behalf, and expressed concern that if the letter was not mailed, it may 

cause issues with his continued ability to act as stand-by counsel. (PageID# 2220). The letter 

was sealed. (Id.). At counsel’s request, the Court made arrangements for the letter to be 

delivered to Nassor at the jail. (Id.). Nothing in the record supports Petitioner’s claim that 

counsel acted improperly in regard to this matter, or that Petitioner was prejudiced thereby. 

 Petitioner also complains that defense counsel stated as follows during voir dire: 

On a personal note, I am a person that is human, and I make 

mistakes. The last time Mr. Dominguez and I tried a case, a 

number of years ago, he, in his closing argument, made mention of 

a mistake that I had made during the course of the trial. And in 

Mr. Dominguez’s opinion, it involved the evidence itself, and in 

my opinion, it did not. But all I am saying is that each of us here 

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in our everyday lives make mistakes. I am going to make a 

mistake in this case. All I am asking is that you don’t hold Mr. 

Murphy to that mistake if it does not involve the testimony or the 

documents that are being introduced into the case? You 

understand what I am saying with respect to my own misgivings or 

any problems that I may have in communicating or making 

mistakes. 

Transcript (filed under seal) (ECF No. 162, PageID# 2292). Again, counsel did not perform in a 

constitutionally unreasonable manner by making this statement to the jury, nor has Petitioner 

established prejudice thereby, as that term is defined under Strickland v. Washington, 466 U.S. 

668 (1984). 

 Further, upon review of the entire record, this Court agrees that Petitioner has failed to 

present any new evidence of a material or exculpatory nature that he could not have earlier 

obtain that establishes his actual innocence of the charges against him or justifies a new trial. 

Likewise, the record is without support for his claim of prosecutorial misconduct. Petitioner has 

also failed to establish the denial of the effective assistance of counsel so as to warrant relief in 

these proceedings, particularly where Petitioner chose to exercise his right of self-representation. 

See Faretta v. California, 422 U.S. 806, 834 n.46 (“[A] defendant who elects to represent 

himself cannot thereafter complain that the quality of his own defense amounted to a denial of 

‘effective assistance of counsel.’”). The record reflects that Petitioner provided Phillips with 

inadequate information to obtain certain material which Petitioner alleges would have been 

exculpatory to the defense. As discussed by the Magistrate Judge, in any event, such material 

would have only provided impeachment evidence, and does not support his claim that Doucette 

lied. The United States Court of Appeals for the Sixth Circuit has already considered, and 

rejected, Petitioner’s claim under Brady v. Maryland, 373 U.S. 83 (1963), and this Court 

therefore will not now again consider such claim here. The record reflects substantial evidence 

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of guilt. In short, upon careful review of the entire record, and for the reasons detailed in the 

Magistrate Judge’s Report and Recommendation, this Court likewise concludes that Petitioner 

has failed to establish a basis for relief. 

 Therefore, Petitioner’s Objection (ECF No. 217) is OVERRULED. The Report and

Recommendation (ECF No. 216) is ADOPTED and AFFIRMED. The Motion to Vacate under

28 U.S.C. 2255 (ECF No. 184) and Motion for New Trial (ECF No. 185) are DENIED. 

Petitioner’s request for an evidentiary hearing is DENIED. This action is hereby DISMISSED. 

 Petitioner also has filed a request for a certificate of appealability. “In contrast to an 

ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no 

automatic right to appeal from an adverse decision by a district court.” Jordan v. Fisher, -- U.S. 

--. --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas petitioner to 

obtain a certificate of appealability in order to appeal.) The petitioner must establish the 

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This standard 

is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 

484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a 

substantial showing of the denial of a constitutional right, a petitioner must show “that 

reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 

n. 4). 

Where the Court dismisses a claim on procedural grounds, however, a certificate of 

appealability “should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right and that 

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jurists of reason would find it debatable whether the district court was correct in its procedural 

ruling.” Id. Thus, there are two components to determining whether a certificate of appealability 

should issue when a claim is dismissed on procedural grounds: “one directed at the underlying 

constitutional claims and one directed at the district court's procedural holding.” Id. at 485. The 

court may first “resolve the issue whose answer is more apparent from the record and 

arguments.” Id. 

 The Court is not persuaded that Petitioner has established that reasonable jurists would 

debate whether this action should have been resolved differently. Petitioner’s request for a 

certificate of appealability therefore is DENIED. 

 IT IS SO ORDERED. 

/s/ George C. Smith___________________ 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT

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