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Mario Benjamin MURPHY

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Murder for hire - To collect on a $100,000 insurance policy
Number of victims: 1
Date of murder: July 28, 1991
Date of arrest: September 4, 1992
Date of birth: 1972
Victim profile: James Radcliff
Method of murder: Beating with a steel pipe - Stabbing with knife
Location: Virginia Beach, Virginia, USA
Status: Executed by lethal injection in Virginia on September 17, 1997
 
 
 
 
 
 

Statement of Governor George Allen

 
 

clemency petition

 
 
 
 
 
 

Mexican hit man Mario Benjamin Murphy, 25, confessed to carrying out a contract murder on James Radcliff at the behest of Radcliff's wife and her boyfriend. They were hoping to collect on a $100,000 insurance policy.

Murphy was to be paid $5,000 for the hit, which he carried out in Virginia Beach in 1991, using a steel pipe to bash in the head of James Radcliff. Murphy also recruited other people for the assignment. In all six people were were implicated in the plot and all the others aside from Murphy are serving life sentences.

 
 

USA (VIRGINIA) Mario B. Murphy, Mexican national

Amnesty.org

12 August 1997

Mario Benjamin Murphy, a Mexican national, is scheduled to be executed in Virginia on 17 September 1997.

Murphy was one of six people charged with the 1991 murder of Navy Petty Officer James Radcliff, but was the only one sentenced to death. Four of Murphy's co-defendants pleaded guilty in exchange for sentences of life imprisonment. The fifth defendant, Radcliff's wife Robin, refused a plea agreement and was tried on a charge of capital murder but was spared the death penalty; she received a sentence of life plus 20 years' imprisonment. Amnesty International does not know why Murphy was not offered the same plea-bargain as his co-defendants. Murphy himself believes that he was ''singled out'' because of his Mexican nationality. He was 19 at the time of the crime and had no any prior criminal convictions for violence.

James Radcliff's death was the result of a murder-for-hire scheme initiated by Robin Radcliff and Gerard Hinojosa, with whom she was having a relationship. At Hinojosa's sentencing hearing, the prosecution stated: ''it's clear that this defendant was the moving party in arranging for the death of...James Radcliff.'' The pair recruited Hinojosa's roommate, Radcliff's son-in-law and Murphy to kill Radcliff. Murphy also recruited a teenager. Radcliff was murdered as he slept. Robin Radcliff then rolled in her husband's blood so as to appear to be a victim of the attack. She then called police saying that her husband had been beaten by burglars.

Murphy, as a citizen of Mexico, was entitled under the Vienna Convention on Consular Relations (1963) to be informed that he had the right to contact the Mexican Embassy and ask for assistance. At no time, from his arrest by the Virginia Beach police department on 4 September 1991, to the imposition of his death sentence on 19 October 1992, was he informed of this right.

The Convention stipulates that the appropriate foreign government officials must be informed when one of their nationals is arrested, in order that they may have the opportunity to offer their citizen legal assistance. Article 36(1b) of the Convention clearly states: If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner.... The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.'' (Emphasis added). The USA ratified, without reservations, the Vienna Conventions in 1969.

Had Murphy known of his right to contact his consul, the latter could have offered substantial assistance to the defence. Murphy's conviction and sentencing occurred without any involvement from the Mexican consul. Even after Murphy had learned of his consular rights in May 1996, the prison warden and Virginia's Attorney General refused to pass on his requests for a visit from the Mexican Consulate.

Legal authorities in Virginia appear to be contemptuous of their obligations under the convention. When asked to comment on Virginia's violation of Article 36, Virginia Beach Commonwealth's Attorney Robert Humphreys called the issue 'ridiculous', saying that at the time of prosecution he had no idea that Murphy was a Mexican national and that the prosecution were not 'mind-readers''. He went on to say that ''the burden is on [defendants] to say, 'Hey, excuse me, I'm a Mexican citizen. Tell my embassy.' But he didn't. He never thought of it until his lawyers thought it up for him.''

Amnesty International is not aware of evidence to suggest that Murphy was any more blameworthy than his co-defendants and can therefore see no reason why he alone has been sentenced to death. The Attorney General of Virginia, responsible for representing the prosecution during the appeal process, has stated: ''that Mr Murphy was more culpable than any of his co-defendants ....(is) simply wrong.'' This clearly contradicts statements by Humphreys who has been quoted as stating that 'We regarded the two most culpable people in the case as Mario Murphy and Robin Radcliff' and cited Murphy's recruitment of the teenager to take part in the crime as justification for this view. However, Robin Radcliff recruited her son-in-law, Michael Bourne, and Hinojosa enlisted his housemate James Hall and Murphy. Therefore it would appear that, using this criteria, Hinojosa should also have had the death penalty sought against him instead of being offered a plea-bargain.

There are at least 60 foreign nationals on death row in the USA whose rights under the Vienna Convention on Consular Relations may have been contravened. On 14 May 1997, American attorneys representing many of these foreign nationals urged the State Department to take strong action against violations of the convention.

The most recent execution of a foreign national by the USA was that of Irineo Tristan Montoya in Texas on 18 June 1997. According to press reports, prior to Montoya's execution the US State Department had asked the Texas authorities to investigate the breach of the Convention. However, state officials refused to carry out a full investigation of the treaty violation on the grounds that Texas was not a signatory to the Convention.

 
 

116 F.3d 97

Mario Benjamin Murphy, Petitioner-Appellant,
v.
J.D. Netherland, Warden, Respondent-Appellee.

Mario Benjamin Murphy, Petitioner-Appellant,
v.
J.D. Netherland, Warden, Respondent-Appellee. United Mexican States, Amicus Curiae.

No. 96-14

Federal Circuits, 4th Cir.

June 19, 1997

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL concur.

OPINION

LUTTIG, Circuit Judge:

Appellant Mario Murphy pleaded guilty in the Circuit Court of the City of Virginia Beach to murder-for-hire and to conspiracy to commit capital murder and was sentenced to death. He now appeals the federal district court's denial of his habeas petition, in which he argued that the Commonwealth of Virginia violated his rights under the Vienna Convention on Consular Relations by failing to inform him that he could contact the Mexican consulate. Because Murphy has not made a "substantial showing of the denial of a constitutional right," we deny his motion for a certificate of appealability and dismiss the appeal. 28 U.S.C. 2253(c).

I.

Murphy was hired by James Radcliff's wife, Robin Radcliff, and her lover, Gary Hinojosa, to kill James Radcliff for $5,000. After the failure of a plan in which Robin was to pretend like her car had broken down and then Murphy was to kill James when he came to help her, Murphy recruited two cohorts, Aaron Turner and James Hall, to help stage a burglary in which they would kill James Radcliff.

Robin Radcliff helped Murphy prepare for the killing by driving him to the apartment complex where she lived, pointing out her husband's car, and telling Murphy the specific bedroom in which James slept. Murphy v. Commonwealth, 246 Va. 136, 431 S.E.2d 48, 50 (1993).

On July 28, 1991, Murphy, Turner, and Hall met at Hinojosa's residence, where they dressed in dark clothes and armed themselves with a metal pipe and two knives before going to the Radcliffs' apartment. When the three assailants arrived at the Radcliffs' apartment, they entered through a window that Robin had unlocked as planned. According to the Virginia Supreme Court:

When Murphy, Turner, and Hall entered the hallway leading to the bedroom, Robin left the bedroom, walked past the assailants, and went to the living room. The three men entered the bedroom where James was sleeping and closed the door. Turner struck James "pretty hard" in the head with a metal pipe. James then sat up in bed and Turner handed the pipe to Murphy, who hit James in the head with the pipe at least twice.

James appeared to be "knocked out" as a result of the blows to his head. Murphy and Turner began stabbing him. Murphy "had a big rush of adrenaline" and he stabbed the victim twice, "once in the front of ... his upper body and then once in the back." Turner placed a knife to James' neck and "tried to slit his throat." Hall, "right behind" Murphy and Turner, was hitting James with a pipe.

James "was just laying in the bed bleeding." Murphy grabbed a telephone and handed it to Hall, who "ripped it out of the wall." Murphy, Turner, and Hall ran from the bedroom to the living room, where they removed a videocassette recorder and a video game. Hinojosa, Robin, and Tina and Michael Bourne had instructed them to remove these items "to make it look like a burglary." Murphy, Turner and Hall placed these items in a duffel bag. They left the apartment through the window that they had entered.

Id., 431 S.E.2d at 50-51. After the police arrived, James Radcliff was taken to the hospital where he was pronounced dead.

When Murphy was arrested by the Virginia Beach police on September 4, 1992, he waived his constitutional rights and confessed to killing James Radcliff. Id. at 51. Murphy pleaded guilty in the Circuit Court of the City of Virginia Beach to murder-for-hire and to conspiracy to commit capital murder. The court entered convictions on both counts, and expressly found that Murphy's pleas were voluntary and intelligent. J.A. at 13-19, 687-89.

After a separate sentencing hearing, the court found that Murphy's conduct constituted "aggravated battery" and demonstrated "depravity of mind" and that Murphy represented "a continuing serious threat to society." J.A. at 135-138. The Court sentenced Murphy to death for the murder of James Radcliff and imposed a twenty-year sentence for the conspiracy conviction. J.A. at 138. The convictions and sentences were affirmed by the Virginia Supreme Court.

The state courts also dismissed Murphy's state habeas claims, finding them all to be either procedurally barred or without merit. Murphy noted an appeal to the Virginia Supreme Court on August 24, 1994, but did not file his petition for appeal until November 2, 1994, one day too late under Virginia law. The Virginia Supreme Court dismissed the appeal as untimely.

Murphy filed his federal habeas petition on April 30, 1996, claiming, among other things, that both his conviction and death sentence are constitutionally invalid because the Virginia Beach authorities failed to notify him that, as a foreign national of Mexico, he had a right under the Vienna Convention on Consular Relations to contact the consulate of Mexico.1 J.A. at 474-83. The district court rejected all of his claims, holding that his Vienna Convention claim was procedurally defaulted because it had not been raised in state court. J.A. at 774-84.

On appeal, Murphy's principal argument is that his Vienna Convention Rights were violated. As an extension of this argument, Murphy argues for the first time on appeal that the violation of the Vienna Convention rendered his guilty plea involuntary.

II.

In order to obtain a certificate of appealability, a petitioner whose habeas petition was denied by a district court must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).2 Murphy's argument that his rights under the Vienna Convention were violated does not satisfy section 2253(c)(2)'s requirement because even if the Vienna Convention on Consular Relations could be said to create individual rights (as opposed to setting out the rights and obligations of signatory nations), it certainly does not create constitutional rights.

Although states may have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention, the Supremacy Clause does not convert violations of treaty provisions (regardless whether those provisions can be said to create individual rights) into violations of constitutional rights. Just as a state does not violate a constitutional right merely by violating a federal statute, it does not violate a constitutional right merely by violating a treaty. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829) (stating that a treaty must "be regarded in courts of justice as equivalent to an act of the legislature").

Even were the district court's denial of habeas relief appealable, we would find Murphy's Vienna Convention claim to be procedurally barred because he did not raise it in state court and he cannot show cause and prejudice for his default. Murphy argues that there was cause for his failure to raise the Vienna Convention claim in state court because of the novelty of this claim and because the state failed to advise him of his "rights" under the Convention.

However, not only did Murphy never raise his novelty argument in the district court, there is absolutely no cause for his not having done so. The Vienna Convention, which is codified at 21 U.S.T. 77, has been in effect since 1969, and a reasonably diligent search by Murphy's counsel, who was retained shortly after Murphy's arrest and who represented Murphy throughout the state court proceedings, would have revealed the existence and applicability (if any) of the Vienna Convention.

Treaties are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national. Counsel in other cases, both before and since Murphy's state proceedings, apparently had and have had no difficulty whatsoever learning of the Convention. See, e.g., Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996); Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir.1993); Mami v. Van Zandt, No. 89 Civ. 0554, 1989 WL 52308 (S.D.N.Y. May 9, 1989); United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.1980); United States v. Calderon-Medina, 591 F.2d 529 (9th Cir.1979); United States v. Vega-Mejia, 611 F.2d 751, 752 (9th Cir.1979).

Indeed, Murphy's primary argument is that "[e]ven the most diligent counsel would have been sorely pressed to recognize the existence" of the Vienna Convention prior to the publication of Faulder v. Johnson, 81 F.3d 515 (5th Cir.1996), Appellant's Br. at 22. Apparently unbeknownst to Murphy's appellate counsel, however, Faulder's attorney discovered the Convention prior to the December 2, 1992 filing of Faulder's habeas petition, over a year before Murphy filed his state habeas petition. Nor can the Commonwealth's failure to notify Murphy of any rights he may have had under the Vienna Convention constitute cause for failure to raise his Vienna Convention claim in state court, as Murphy has shown no "external impediment preventing [his] counsel from constructing or raising the claim." Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986).

The legal basis for the Vienna Convention claim could, as noted above, have been discovered upon a reasonably diligent investigation by his attorney, and the factual predicate for that claim--that Murphy is a citizen of Mexico--was obviously within Murphy's knowledge.

Murphy has also failed to establish prejudice from the alleged violation of the Vienna Convention because he is unable to explain how contacting the Mexican consulate would have changed either his guilty plea or his sentence. Murphy argues that he was prejudiced by the Commonwealth's failure to notify him of his right to contact the Mexican consulate because the consulate could have helped him either obtain a plea bargain or obtain mitigating evidence for the sentencing hearing.

As to the assistance that might have been provided with respect to the plea bargain, Murphy argues that, because his cohorts did not receive the death penalty, his death sentence must have been the result of ethnic discrimination which somehow could have been avoided by help from the Mexican consulate.

Presumably, this is some sort of help that his attorney was unable to provide but that would have led the prosecutor to offer Murphy a lighter plea. The prosecutor in Murphy's case, however, stated "unequivocally" that Murphy's attorney approached him for a plea bargain and that he "would not have entered into a plea agreement with Murphy under any circumstances because of Murphy's primary role in the murder and the fact that he recruited others to participate in the murder." J.A. at 787.

In light of Murphy's greater culpability, the prosecutor's decision to offer plea bargains to the other defendants but not to Murphy is obviously reasonable and nondiscriminatory. Furthermore, even if the prosecution's refusal to offer a plea bargain was discriminatory, Murphy offers no evidence that the Mexican consulate could have offered any assistance that his attorney did not.

There is also no evidence to support Murphy's generalized assertion that the Mexican consulate could have helped him obtain mitigating evidence from Mexico that would have affected his sentencing hearing. As the district court found, Murphy has made "no showing of what evidence the Mexican consulate would have produced." J.A. at 781-82.

Furthermore, Murphy's assertion that the Mexican consulate could have helped him obtain character testimony from his relatives in Mexico does not establish prejudice because Murphy has failed to show how assistance from the consulate was necessary to obtain such testimony and because such character testimony would have been largely duplicative of the character testimony that was actually presented at the sentencing hearing. J.A. at 59-61, 63-75.

III.

Perhaps in an attempt to make a "substantial showing of the denial of a constitutional right," and thereby to obtain a certificate of appealability, Murphy argues for the first time on appeal that his guilty plea was involuntary because of the state's failure to advise him of his Vienna Convention "rights." Because Murphy did not even raise this claim in his federal habeas petition, much less his state habeas petition, it plainly cannot provide a ground for relief.3 Furthermore, this claim is procedurally barred for the same reasons that the substantive Vienna Convention claim is barred.

Thus, although the involuntary plea argument constitutes a claimed violation of a constitutional right, it in no way constitutes a "substantial showing of the denial of a constitutional right" as required in order to obtain a certificate of appealability. 28 U.S.C. 2253 (emphasis added). Thus, we deny the certificate of appealability on the involuntary plea claim and find that that claim, too, would fail even were it appealable.

The appeal is dismissed pursuant to 28 U.S.C. 2253.

DISMISSED.

*****

1 Article 36(1)(b) of the Vienna Convention provides:

[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

21 U.S.T. at 101.

2 Section 2253 provides:

  (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--

  (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

  (B) the final order in a proceeding under section 2255.

  (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

  (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. 2253 (emphasis added). There is no issue regarding retroactivity in this case because Murphy filed his federal habeas petition six days after the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, was signed into law.

3 In Claim B of his federal habeas petition, Murphy alleged that his guilty plea was invalid because "at the time of his plea, Mario had not been advised of a viable defense to the charge of capital murder." J.A. at 207. This "viable defense," however, was that his trial counsel did not advise him that the state had to prove that he committed the murder for hire. J.A. at 208. Although Murphy eventually amended his federal habeas petition to add a substantive Vienna Convention claim, that additional claim was not a claim that his plea was involuntary. J.A. at 474-82. Murphy's suggestion that he somehow incorporated the Vienna Convention/involuntary plea claim into his petition when he referred to such a claim in a footnote in his opposition to the Warden's motion to dismiss the habeas claim is to no avail

 

 

 
 
 
 
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