UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ROBERT A. C. MURPHY, )

)

Petitioner, )

)

v. ) CAUSE NO. 3:16CV606-PPS/MGG

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Robert A. C. Murphy, a prisoner without a lawyer, filed a motion to alter or

amend the order denying his habeas petition. Because this motion was dated and filed

more than twenty-eight days after the entry of the dismissal order, I construe this

motion as a motion for relief from a judgment or order under Fed. R. Civ. P. 60(b). See

Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666 (7th Cir. 2014). For habeas cases, Rule

60(b) motions on the merits of the claims are considered successive petitions under 28

U.S.C. § 2244. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005). By contrast, Rule 60(b)

motions relating to a procedural issues, including timeliness, exhaustion, and

procedural default, are not considered successive petitions. Id. at 533-36.

In the instant motion, Murphy asks for reconsideration on his habeas claims that

his confession was inadmissible, that he was deprived of a complete record at the

appellate stage of his State post-conviction relief proceedings, and that the evidence at

trial was insufficient to support his conviction. These arguments focus on the merits of

Murphy’s claims and must be treated as a successive petition. “A claim presented in a
second or successive habeas corpus application under section 2254 that was presented

in a prior application shall be dismissed.” 28 U.S.C.A. § 2244(b)(1). Therefore, these

claims will not be reconsidered.

Murphy also argues that the prosecution failed to determine whether DNA from

the crime scene matched three male individuals (whom he does not identify) and that

his trial counsel and appellate counsel were ineffective for not seeking such additional

DNA testing. Murphy did not list this claim with respect to the prosecution or trial

counsel in his habeas petition. Absent certain circumstances that are not present here,

“[a] claim presented in a second or successive habeas corpus application under section

2254 that was not presented in a prior application shall be dismissed.” 28 U.S.C. §

2244(b)(2). 

Nevertheless, Murphy arguably raised this claim in his habeas petition with

respect to appellate counsel. Because I did not construe Murphy’s petition as raising this

particular formulation of his ineffective assistance of appellate counsel claim, I will

address it here.1

 First, Murphy has not identified the three male individuals, which

makes full consideration of this claim impossible, and, by itself, is fatal to this claim.

Further, on direct appeal, appellate counsel informed the Court of Appeals of Indiana

that the prosecution’s DNA expert did not attempt to match the DNA from the scene to

1

In the habeas petition, Murphy asserted that “Appellate Counsel failed to raise

DNA test which would have shown Petitioner’s actual innocence.” I construed this as a

claim that appellate counsel should have raised the prosecution’s lack of incriminating

DNA evidence in a sufficiency of evidence claim on direct appeal.

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any individuals other than Murphy and his associate, Jeffery Allen. ECF 9-3 at 16.

Additionally, I have previously found that the evidence of Murphy’s guilt presented at

trial was overwhelming, which strongly suggests a lack of prejudice. ECF 25 at 18-20. In

sum, Murphy has not shown that this claim regarding his appellate counsel is a basis

for habeas relief.

Murphy further argues that his procedurally defaulted claims should be excused

under Martinez v. Ryan, 566 U.S. 1 (2012), which states, “Inadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a prisoner's

procedural default of a claim of ineffective assistance at trial.” However, Martinez

applies only to trial counsel claims; it does not apply to claims related to appellate

counsel, judicial error, or prosecutorial misconduct. Id. at 16. I have fully considered all

claims related to the performance of Murphy’s trial counsel listed in the habeas petition.

ECF 25 at 8-9. As a result, I will not further consider the issue of procedural default.

ACCORDINGLY:

Petitioner Robert A. C. Murphy’s motion to alter or amend the judgment (ECF

36) is DENIED.

SO ORDERED on May 22, 2018.

. /s/ Philip P. Simon 

Judge

United States District Court

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