Devin Murphy v. Gary Sandor

dissenting.

The Ninth Circuit is the busiest regional court system in the United States. The court had more than 16,000 pending appeals in 2007. That same year, the Central District of California, from which this appeal arises, had more than 14,000 filings, which are handled by a mere 28 ■ active Article III judges. While the interests of justice cannot be ignored to promote judicial efficiency, the decision of the majority in this case sacrifices efficiency without advancing the interests of justice.

Here, the state requested that this court take judicial notice of the transcript of Murphy’s 1997 guilty plea. The transcript conclusively demonstrates that Murphy’s 1997 conviction was for first degree burglary and that Murphy acknowledged the conviction qualified as a strike.

This court may take judicial notice of documents that were not before the district court when doing so serves the interest of judicial efficiency. See, e.g., United States v. Esquivel, 88 F.3d 722, 727 (9th Cir.1996). When a remand would be a “waste of time,” the Ninth Circuit has held that “judicial ping-ponging between the *826 state and federal courts serves no useful purpose,” and the court should act…

MEMORANDUM **

California state inmate Devin Murphy appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. He challenges his sentence on the ground that the trial court lacked sufficient evidence to find that his prior burglary conviction qualified as a “serious prior felony” warranting a five-year sentence enhancement under California’s Three Strikes law. See *825 CaLPenal Code §§ 667(a)(1), (b)-(i); 1170.12(a)-(d). That law includes first-degree but not second-degree burglary within the definition of a serious prior felony. Id. at § 1192.7(c)(18).

The prosecution submitted two exhibits in support of its contention that Murphy’s prior conviction was for first rather than second-degree burglary. The first exhibit included Murphy’s booking card, which, as the California Court of Appeal observed, could not and does not indicate the charge to which he ultimately pled guilty. The second exhibit is a minute order contained in the record of the underlying offense. The minute order offers the judge’s explanation regarding the unusual circumstance that justified probation in this case. The state appellate court concluded that the minute order alone was sufficient…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 17 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DEVIN C. MURPHY, No. 08-56701

Petitioner - Appellant, D.C. No. 2:08-cv-01313-GPS-

FMO

v.

GARY SANDOR, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California George P. Schiavelli, District Judge, Presiding

Argued and Submitted August 1, 2011 Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and PANNER, Senior District Judge.**

California state inmate Devin Murphy appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. He challenges his sentence on the ground

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Owen M. Panner, Senior District Judge for the U.S. District Court for Oregon, Portland, sitting by designation. that the trial court lacked sufficient evidence to find that his prior burglary

conviction qualified as…