NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISMAEL ANTONIO MURPHY- No. 22-15001

RICHARDSON,

D.C. No. 2:21-cv-00954-ROS Petitioner-Appellant, v.

MEMORANDUM*

ATTORNEY GENERAL FOR THE STATE

OF ARIZONA; DAVID SHINN, Director,

Respondents-Appellees,

and

MARICOPA COUNTY SUPERIOR

COURT,

Respondent.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted November 9, 2023 Phoenix, Arizona

Before: SCHROEDER, COLLINS, and DESAI, Circuit Judges. Dissent by Judge COLLINS.

Appellant Ismael Murphy-Richardson appeals the district court’s dismissal of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his petition for habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We review a district court’s dismissal of a habeas petition de novo.

Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016). We affirm in part and

reverse and remand in part.

1. Mr. Murphy-Richardson’s ineffective assistance of counsel claim is

procedurally barred in part and unexhausted in part. Mr. Murphy-Richardson alleges

ineffective assistance of counsel by two trial lawyers. His claim regarding his first

attorney was not raised in his post-conviction petitions and is thus unexhausted. See

Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[E]xcept in habeas

petitions in life-sentence or capital cases, claims of Arizona state prisoners are

exhausted for purposes of federal habeas once the Arizona Court of Appeals has

ruled on them.”). Because Mr. Murphy-Richardson was able to raise the claim in his

post-conviction proceedings but failed to do so, he is barred from returning to state

court to exhaust his claim. See Ariz. R. Crim. P. 33.2(a)(3) (precluding post-

conviction relief for any ground “waived in any previous post-conviction

proceeding”).

Mr. Murphy-Richardson’s claim regarding his second trial attorney is

unexhausted because it was raised in a post-conviction petition that appears to be

pending before the superior court. Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir.

1964) (per curiam) (holding that the exhaustion requirement is not satisfied if a post-

2 22-15001 conviction petition is pending in state court); see Henderson v. Johnson, 710 F.3d

872, 874 (9th Cir. 2013) (“[A] district court may not adjudicate a federal habeas

petition while a petitioner’s direct state appeal is pending.”). The dissent applies

general principles of procedural default to conclude that Mr. Murphy-Richardson’s

claim is procedurally barred under state law. But there is no authority for extending

general principles of procedural default to a case where a post-conviction petition is

pending in state court. In fact, doing so would violate the principles of comity that

our exhaustion doctrine is designed to promote. See Rose v. Lundy, 455 U.S. 509,

515–16 (1982) (“[C]omity was the basis for the exhaustion doctrine: ‘it is a principle

controlling all habeas corpus petitions to the federal courts, that those courts will

interfere with the administration of justice in the state courts only in rare cases where

exceptional circumstances of peculiar urgency are shown to exist.’” (quoting Ex

parte Hawk, 321 U.S. 114, 117 (1944))). In any event, the government concedes that

a remand for dismissal without prejudice is appropriate given the parties’

disagreement about the status of the post-conviction petition.

Mr. Murphy-Richardson is not entitled to a Rhines stay because he has not

established good cause for his failure to exhaust. See Wooten v. Kirkland, 540 F.3d

1019, 1023 (9th Cir. 2008) (“[S]tay and abeyance is only appropriate when the

district court determines there was good cause for the petitioner’s failure to exhaust

his claims first in state court.” (quoting Rhines v. Weber, 544 U.S. 269, 277 (2005))).

3 22-15001 The government agrees, however, that if Mr. Murphy-Richardson’s February 2021

post-conviction petition was not a successive petition, the statute of limitations for

his habeas petition will toll while he exhausts his claim in state court.

2. Mr. Murphy-Richardson’s insufficiency of the evidence claim is

procedurally barred. Although he raised the claim in a post-conviction petition in

state court, he did not timely appeal. Mr. Murphy-Richardson thus failed to exhaust

all his state court remedies. See Swoopes, 196 F.3d at 1010. Because the sufficiency

of the evidence could have been raised in a prior petition, Mr. Murphy -Richardson

is precluded from raising the claim again in a successive petition, and the claim is

procedurally barred. See Ariz. R. Crim. P. 33.2(a)(3).

We therefore affirm in part, reverse in part, and remand for the district court

to dismiss the petition without prejudice.

AFFIRMED in part, REVERSED in part, and REMANDED.

Appellant’s motions to take judicial notice (Dkts. 51 and 52) and to

supplement the record on appeal (Dkt. 73) are GRANTED.

4 22-15001

FILED

JAN 31 2024

Murphy-Richardson v. Attorney General for the State of Arizona, No. 22-15001

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

COLLINS, Circuit Judge, dissenting:

Our court granted a certificate of appealability (“COA”) to address the

following issue in this case: “whether the district court erred in dismissing

appellant’s habeas petition with prejudice as procedurally defaulted, when

appellant’s counseled, state post-conviction proceedings alleging ineffective

assistance of counsel remained pending.” Because I would answer this question in

the negative, I respectfully dissent.

I

In December 2018, Murphy-Richardson pleaded guilty to three counts of

sexual assault, and two months later he was sentenced to 21 years in prison.

Murphy-Richardson filed a petition for post-conviction relief in Arizona state court

on July 3, 2019. The petition contended, inter alia, that his plea was involuntary

and lacked a factual basis, that the trial judge was biased, and that the prosecution

had committed misconduct. Under Rule 33.10(a) of the Arizona Rules of Criminal

Procedure, the “presiding judge” of the court “must, if possible, assign a

proceeding for post-conviction relief to the sentencing judge.” Murphy-

Richardson’s petition was assigned on May 7, 2020 to his prior sentencing judge

for decision. While that petition was still pending, Murphy-Richardson filed a pro

se successive petition on June 8, 2020. This second petition contained an entirely conclusory assertion that counsel had been ineffective. On July 29, 2020, the state

trial court denied Murphy-Richardson’s first petition in a written order. That order

noted the pendency of Murphy-Richardson’s “second” petition, but the court stated

that it would rule only on “the July 3, 2019 Petition” and that it would “defer to the

Post Conviction Relief Division to manage the initial processing of the June 8,

2020 petition.” Murphy-Richardson did not appeal the denial of his first state

petition.

On October 19, 2020, the superior court issued an order construing the

second petition as a preliminary “notice” requesting post-conviction relief under

Arizona Rule of Criminal Procedure 33.4, and the court directed the filing of a

formal petition by December 18 and set a briefing schedule. Murphy-Richardson

filed that petition on November 3, 2020. The petition briefly asserted that both of

Murphy-Richardson’s appointed attorneys had been ineffective. On December 4,

2020, the state court granted Murphy-Richardson’s request for appointment of

counsel and also granted leave to file an amended petition. A counseled petition

was filed on February 22, 2021. The counsel-prepared memorandum in support of

the petition only discussed the alleged ineffectiveness of Murphy-Richardson’s

second attorney, but the pro se “affidavit” attached to that petition continued to

attack the effectiveness of his original counsel as well. In its response, the State

argued, inter alia, that, under Rule 33.2(a)(3), Murphy-Richardson’s failure to

2 previously raise his new claims precluded them from being considered on their

merits.

The parties have presented us with a variety of subsequent orders from the

Arizona state courts concerning various post-conviction papers filed by Murphy-

Richardson in his 2018 sexual-assault-conviction case as well as in two prior 2016

criminal cases. On March 7, 2023, a consolidated order was entered that listed all

three case numbers and assigned “this Rule 33 proceeding” to Murphy-

Richardson’s sentencing judge for decision. The parties agree that this order

assigned Murphy-Richardson’s counseled second petition to his sentencing judge

for decision. On June 1, 2023, that judge issued an order captioned “Rule 33

Proceedings Dismissed.” It is not entirely clear from that order whether it disposes

of Murphy-Richardson’s counseled second petition. It lists no less than 12 pending

documents filed by Murphy-Richardson that the judge deemed to be petitions for

post-conviction relief, but the counseled second petition is not itself on that list.

Moreover, the order states that the papers before it represent Murphy-Richardson’s

“third Rule 33 proceeding” in his 2018 case (emphasis added). However, the order

also states at the end that the court “den[ies] all other requests for relief.” Murphy-

Richardson has appealed this order, and the appeal remains pending.

Murphy-Richardson filed a federal habeas petition on May 28, 2021. In

December 2021, the district court ultimately dismissed Murphy-Richardson’s

3 subsequent amended petition on the ground, inter alia, that all of the claims

asserted had not been properly presented to the Arizona state courts and were

therefore subject to an “implied procedural bar.”

II

The majority holds that we are required to dismiss Murphy-Richardson’s

ineffective assistance claim against his second attorney, because that claim was

raised in Murphy-Richardson’s second state post-conviction petition, which is still

pending in state court. See Mem. Dispo. at 2–3. That is wrong.

A

It is well established that the “procedural default rule barring consideration

of a federal claim applies if it is clear that the state court would hold the claim

procedurally barred.” Hurles v. Ryan, 752 F.3d 768, 779 (9th Cir. 2014) (emphasis

added) (simplified). And when such an implied procedural bar is applicable, the

defaulted claim is technically exhausted, because “no state remedies” remain

available. Id. at 780 (citation omitted); see also Shinn v. Martinez Ramirez, 596

U.S. 366, 378 (2022) (“If a state court would dismiss these claims for their

procedural failures, such claims are technically exhausted because, in the habeas

context, state-court remedies are exhausted when they are no longer available,

regardless of the reason for their unavailability.” (simplified)). Here, as the district

court correctly concluded, Murphy-Richardson’s ineffective assistance of counsel

4 claims are all plainly subject to adequate and independent procedural bars under

Arizona law, because these claims were not raised in Murphy-Richardson’s first

state post-conviction petition. See ARIZ. R. CRIM. P. 33.2(a)(3) (stating that a

defendant is generally precluded from obtaining post-conviction relief “based on

any ground[] waived in any previous post-conviction proceeding”). Those claims

are therefore procedurally defaulted and exhausted.

Murphy-Richardson’s arguments for declining to find an implied procedural

default are all meritless. First, he contends that, when his pro se first petition is

given the required liberal construction, see Erickson v. Pardus, 551 U.S. 89, 94

(2007), it can and should be read as raising an ineffective assistance of counsel

claim. But no amount of liberal construction can overcome the fact that there is

nothing resembling his current ineffective assistance of counsel claim in Murphy-

Richardson’s first petition.1 Moreover, as Murphy-Richardson recognizes in his

brief, the state court itself, in denying that petition, construed it more narrowly in a

1 The only even conceivable reference to ineffective assistance consists of the first state petition’s unexplained and passing statement that Murphy-Richardson “expressed interest to counsel in appealing [his guilty plea]; Roe v. Flores-Ortega 528 U.S. [470 (2000)].” Roe addressed “the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without [the defendant’s] consent.” 528 U.S. at 473 (emphasis added). Murphy-Richardson’s federal petition does not raise any such claim concerning a failure to file a notice of appeal. In any event, Murphy-Richardson’s failure to appeal the denial of his first state petition results in a procedural default of all of the claims resolved in that petition. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

5 way that does not embrace such a claim.

Second, Murphy-Richardson suggests that his counseled second petition is

not successive at all but is rather an authorized supplement to his 2019 petition.

This argument is belied by the record. The state court treated the petitions as two

distinct petitions, not as an initial petition followed by an amendment or

supplement. In particular, as noted earlier, the state court’s order denying Murphy-

Richardson’s first pro se petition explicitly deferred to the court’s post-conviction

division to “manage the initial processing” of Murphy-Richardson’s “second”

petition.

Because Murphy-Richardson’s ineffective assistance claims are procedurally

defaulted, and Murphy-Richardson has not contended that he can show cause and

prejudice to excuse that default, the district court correctly dismissed these claims.

See Shinn, 596 U.S. at 378–79.

B

The majority effectively holds that, merely because Murphy-Richardson has

actually filed a successive state petition that is manifestly subject to state-law

procedural bars, we are required to dismiss the relevant federal claim and may not

apply our well-settled doctrine of implied procedural default. The majority cites

no authority that supports that proposition, and I have not found any either.

6 Moreover, the majority’s view makes no sense. The whole premise of the

doctrine of implied procedural default is that there is no point in waiting for a state

court to reject what would obviously be a defaulted petition. See Harris v. Reed,

489 U.S. 255, 263 n.9 (1989) (stating that exhaustion requirements do not apply “if

it is clear that the state court would hold the claim procedurally barred” (emphasis

added)); see also Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010) (“An

implied procedural bar . . . occurs when the petitioner has failed to fairly present

his claims to the highest state court and would now be barred by a state procedural

rule from doing so.”). That rationale remains applicable even if the petitioner has

actually filed such a defaulted state petition and the state court has, for whatever

reason, not yet ruled on it. And even assuming that the doctrine of implied

procedural bar might not apply if there were some affirmative basis for concluding

that the state court might decline to apply the procedural bar, there is no such basis

in the record here. As I have explained, all of Murphy-Richardson’s arguments for

avoiding the state procedural bar are contradicted by the state court record and

plainly meritless. To the extent that the second state petition nonetheless may

remain technically pending in this case (either in the state trial court or the state

appellate court), that does not provide any basis for thinking that the petition will

escape the obviously applicable procedural default. On this record, it appears at

most that, in the blizzard of confusing and duplicative paper filed by Murphy-

7 Richardson in the Arizona state trial court, that court may have overlooked

specifically mentioning that additional pending petition.

III

For the foregoing reasons, I would answer the question in the COA in the

negative, and I would affirm. I see no basis for construing the existing COA more

broadly as embracing all of the claims contained in Murphy-Richardson’s federal

habeas petition, and I also perceive no basis for expanding that COA. Cf. NINTH

CIR. R. 22-1(e). But to the extent that the majority effectively does so, those

additional claims are also plainly subject to procedural default (either because

Murphy-Richardson did not present them in his first state post-conviction petition

or because he did not appeal the denial of that petition), and the district court

properly dismissed them as well.

I respectfully dissent.

8