116 F.3d 97
Mario Benjamin Murphy,
J.D. Netherland, Warden, Respondent-Appellee.
Mario Benjamin Murphy,
J.D. Netherland, Warden, Respondent-Appellee.
United Mexican States, Amicus Curiae.
Circuits, 4th Cir.
June 19, 1997
NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Dismissed by published
opinion. Judge LUTTIG wrote the opinion, in
which Judge NIEMEYER and Judge MICHAEL concur.
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.
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
Id., 431 S.E.2d at 50-51.
After the police arrived, James Radcliff was
taken to the hospital where he was pronounced
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,
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
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.
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.
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.
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
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
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
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.
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
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.
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.
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.
[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.
(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.