United States District Court, D. New Jersey
October 3, 2005.
SEAN WILLIAM MURPHY, Petitioner,
C.J. DEROSA, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter is before the Court on the petition of Sean William
Murphy ("Murphy") for habeas corpus relief under
28 U.S.C. § 2241. The "petition" was initially filed with the Court on or
about December 12, 2003. Murphy filed a motion to supplement or
amend his "petition" on or about February 15, 2005. The Court has
reviewed all documents submitted and, for reasons now discussed,
will dismiss the petition and amended petition in their entirety. BACKGROUND
Murphy is presently in custody at F.C.I. Fort Dix in Fort Dix,
New Jersey, serving a 204 month sentence as imposed by the United
States District Court for the Middle District of Pennsylvania.
Murphy's projected release date is May 30, 2011.
In June 1996, Murphy was charged in a four count indictment for
drug-related offenses. On November 4, 1996, pursuant to a plea
agreement, Murphy pled guilty to count II of the indictment,
which charged him with conspiracy to distribute and possess with
intent to distribute cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 846. On April 1, 1997, Murphy was sentenced to 204
Murphy filed a direct appeal, which the United States Court of
Appeals for the Third Circuit denied in an unpublished memorandum
opinion. See United States v. Murphy, No. 97-7178 (3d Cir.
Dec. 9, 1997). On December 9, 1998, Murphy filed a pro se
motion under 28 U.S.C. § 2255, in the Middle District of
Pennsylvania. The district court denied Murphy's § 2255 motion on
February 16, 1999. The Third Circuit affirmed on appeal. See
United States v. Murphy, No. 99-3316 (3d Cir. Nov. 24, 1999).
On or about December 12, 2003, Murphy filed this habeas
petition under 28 U.S.C. § 2241. In his petition, Murphy
challenges the Bureau of Prisons' ("BOP") scoring of his custody
classification. He states that the BOP imposed the Greatest Severity Public Safety Factor ("PSF") based on his current
offense (conspiracy to distribute cocaine), the amount of crack
cocaine involved (in excess of 1.5 kilograms) and the finding
that Murphy was a leader of a drug conspiracy responsible for
distributing 4.21 kilograms of crack cocaine.
Murphy argues that the information is inaccurate and contrary
to the court's findings. He claims that the Greatest Severity PSF
adversely affects his custody classification, his prison
designation, and his participation in prison programs. He also
seeks monetary damages and a correction in his PSF to make him
eligible for prison camp designation.
On or about February 15, 2005, Murphy filed a motion to
supplement/amend his petition. He raises claims based on recent
Supreme Court cases. Specifically, Murphy challenges his enhanced
sentence as unconstitutional under Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531 (2004); United States v. Booker,
125 S.Ct. 738 (2005); and Apprendi v. New Jersey, 530 U.S. 466, 476
(2000). Murphy contends that the sentencing judge enhanced his
sentence based on findings inconsistent with the charged offense.
The indictment allegedly charged Murphy with "conspiracy to
distribute, and possess with the intent to distribute in excess
of 5 kilograms of cocaine, a schedule II narcotic controlled
substance." Murphy argues that he understood the offense conduct
to involve "powder" cocaine based on the explanation provided to him by his defense counsel. (Motion to
Amend, at ¶¶ 3-4, pg. 5). However, the judge determined, based on
the lesser standard of preponderance of the evidence, that the
offense involved at least 1.5 kilograms of crack cocaine, which
unfairly exposed petitioner to an enhanced base offense under the
United States Sentencing Guidelines ("U.S.S.G."), thereby
increasing his federal sentencing range.
Next, Murphy argues that the district court sentenced
petitioner based on "uncharged and unalleged elements/factors of
the criminal offense conduct." Specifically, the base offense
level was determined pursuant to the court finding 1.5 kilograms
of crack cocaine instead of cocaine powder, which would have had
a lower base level. Murphy asserts that these actions violated
his Fifth Amendment right to due process and his Sixth Amendment
right to notice and jury trial guarantees.
Murphy asserted similar claims under Apprendi in a motion for
a sentencing adjustment under the U.S. Sentencing Guidelines,
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). On July 11,
2000, the Honorable William W. Caldwell, United States District
Court for the Middle District of Pennsylvania, entered an Order
denying petitioner's request for a downward departure. The Third
Circuit affirmed on appeal. See United States v. Murphy, No.
00-2276 (3d Cir. Oct. 4, 2001). Shortly after Murphy sought to amend his petition in this case,
he filed a motion under Fed.R.Civ.P. 60(b), in the Middle
District of Pennsylvania, attacking his conviction and sentence
under Apprendi and Booker. Judge Caldwell denied the motion
on April 7, 2005. Murphy sought reconsideration, which the court
also denied. See United States v. Murphy, No. CRIM.
1:CR-96-149, 2005 WL 2314135 (M.D.Pa. Sept. 22, 2005).
A. Standard of Review
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and set forth
"facts supporting each of the grounds thus specified." See
28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §
2241 petitions through Habeas Rule 1(b).
Habeas Rule 4 requires the Court to examine a petition prior to
ordering an answer and to summarily dismiss the petition if "it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court."
28 U.S.C. § 2254 Rule 4. "Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face." McFarland, 512 U.S. at 856; see
also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.
2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied,
490 U.S. 1025 (1989).
B. Claims Challenging Murphy's Enhanced Sentence
Section 2241 of Title 28 of the United States Code provides in
(c) The writ of habeas corpus shall not extend to a
prisoner unless . . . He is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2241(c)(3).
As a result of the practical difficulties encountered in
hearing a challenge to a federal sentence in the district of
confinement rather than the district of sentence, in its 1948
revision of the Judicial Code, Congress established a procedure
whereby a federal prisoner might collaterally attack his sentence
in the sentencing court.*fn1 See 28 U.S.C. § 2255; Davis
v. United States, 417 U.S. 333, 343-44 (1974); United States v.
Hayman, 342 U.S. 205, 219 (1952). Section 2255 provides in
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
28 U.S.C. § 2255, ¶ 1.
"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means
by which federal prisoners can challenge their convictions or
sentences that are allegedly in violation of the Constitution."
Okereke v. United States, 307 F.3d 117, 120 (3d Cir.), cert.
denied, 537 U.S. 1038 (2002). This is because § 2255 expressly
prohibits a district court from entertaining a challenge to a
prisoner's federal sentence under § 2241 unless the remedy under
§ 2255 is "inadequate or ineffective" to test the legality of the
petitioner's detention.*fn2 See 28 U.S.C. § 2255.
Specifically, paragraph five of § 2255 provides:
An application for a writ of habeas corpus [pursuant
to 28 U.S.C. § 2241] in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to
this section, shall not be entertained if it appears
that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that
such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or ineffective to test the
legality of his detention.
28 U.S.C. § 2255, ¶ 5; see Cradle v. U.S. ex rel. Miner,
290 F.3d 536
(3d Cir. 2002); In re Dorsainvil, 119 F.3d 245
(3d Cir. 1997).
A § 2255 motion is inadequate or ineffective, authorizing
resort to § 2241, "only where the petitioner demonstrates that
some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of
his wrongful detention claim." Cradle, 290 F.3d at 538. "It is
the inefficacy of the remedy, not the personal inability to use
it, that is determinative." Id. "Section 2255 is not
`inadequate or ineffective' merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255. The provision
exists to ensure that petitioners have a fair opportunity to seek
collateral relief, not to enable them to evade procedural
requirements." Id. at 539.
In In re Dorsainvil, 119 F.3d at 251, the Third Circuit
applied the "inadequate or ineffective" test to a § 2241 claim
based on a change of substantive law that occurred after
Dorsainvil's first § 2255 motion was decided.*fn3 The Third
Circuit first determined that Dorsainvil could not raise the Bailey
claim in a successive § 2255 motion because the AEDPA restricted
successive § 2255 motions to constitutional claims.*fn4
However, the court held that, in this narrow situation where
Dorsainvil had no other opportunity to raise the claim, § 2255
was inadequate and ineffective. The Court reasoned:
Dorsainvil does not have and, because of the
circumstances that he was convicted for a violation
of § 924(c)(1) before the Bailey decision, never
had an opportunity to challenge his conviction as
inconsistent with the Supreme Court's interpretation
of § 924(c)(1). If, as the Supreme Court stated in
[Davis v. United States, 417 U.S. 333 (1974)], it
is a "complete miscarriage of justice" to punish a
defendant for an act that the law does not make
criminal, thereby warranting resort to the collateral
remedy afforded by § 2255, it must follow that it is the same "complete miscarriage of justice" when the
AEDPA amendment to § 2255 makes that collateral
remedy unavailable. In that unusual circumstance, the
remedy afforded by § 2255 is "inadequate or
ineffective" to test the legality of [Dorsainvil's]
Dorsainvil, 119 F.3d at 251 (quoting Davis v. United States,
417 U.S. 333
, 346-47 (1974)).
The Third Circuit emphasized the narrowness of its holding:
We do not suggest that § 2255 would be "inadequate or
ineffective" so as to enable a second petitioner to
invoke § 2241 merely because that petitioner is
unable to meet the stringent gatekeeping requirements
of the amended § 2255. Such a holding would
effectively eviscerate Congress's intent in amending
§ 2255. However, allowing someone in Dorsainvil's
unusual position that of a prisoner who had no
earlier opportunity to challenge his conviction for a
crime that an intervening change in substantive law
may negate, even when the government concedes that
such a change should be applied retroactively is
hardly likely to undermine the gatekeeping provisions
of § 2255.
Dorsainvil at 251.*fn5
Turning to the case at bar, it is clear that the grounds for
habeas relief raised by Murphy in his amended petition are within
the scope of claims that are cognizable under § 2255. Therefore,
§ 2255 prohibits this Court from entertaining Murphy's claims
under § 2241 unless § 2255 is inadequate or ineffective for him
to raise them.
Murphy contends that § 2241 is applicable to seek relief from
his enhanced sentence based on recently decided, relevant Supreme
Court cases, namely, Blakely, Booker, and Apprendi. In his
amended petition, however, Murphy conveniently omits that he had
raised an Apprendi claim in an earlier motion.
In Apprendi, the Supreme Court determined that Apprendi had a
constitutional right to have a jury, rather than a judge, find
bias because the finding was necessary to support an enhanced
sentence under the New Jersey hate crimes law. The Supreme Court reversed Apprendi's sentence pursuant to the principle of
Jones, 526 U.S. at 243 n. 6, which the Court applied to New
Jersey law through the Due Process Clause of the Fourteenth
Amendment. The principle is that, "under the Due Process Clause
of the Fifth Amendment and the notice and jury trial guarantees
of the Sixth Amendment, any fact (other than prior conviction)
that increases the maximum penalty for a crime must be charged in
an indictment, submitted to a jury, and proven beyond a
reasonable doubt." Apprendi, 530 U.S. at 476 (quoting Jones,
526 U.S. at 243 n. 6). Recently, in Booker, the Supreme Court,
determined that, for reasons explained in Jones, Apprendi,
Ring v. Arizona, 536 U.S. 584 (2002), and Blakely,
application of the Federal Sentencing Guidelines to the
defendants violated the Sixth Amendment because the guidelines
required the judge to enhance the sentence based on the judge's
determination of facts that were not found by the jury or
admitted by defendant.*fn6 It is apparent that Apprendi, Blakely and Booker are
changes of law that were announced after Murphy's conviction and
sentencing in 1997. However, Murphy cannot raise his Apprendi,
Blakely, and Booker claims in a successive § 2255 motion
because Apprendi and its progeny have not been made retroactive
to cases on collateral review by the Supreme Court. See Tyler
v. Cain, 533 U.S. 656 (2001); In re Turner, 267 F.3d 225 (3d
Cir. 2001); see also Carmona v. United States, 390 F.3d 200
(2nd Cir. 2004) (Blakely claim cannot be raised in a second or
successive § 2255 motion because the Supreme Court has not made
it retroactive to cases on collateral review); Cook v. United
States, 386 F.3d 949 (9th Cir. 2004) (same); Cuevas v. DeRosa,
386 F.3d 367 (1st Cir. 2004) (same). However, it does not follow
that § 2255 is an inadequate or ineffective procedural mechanism
for Murphy to raise his Apprendi, Blakely, and Booker
Section 2255 is not inadequate or ineffective "merely because
the sentencing court does not grant relief, the one-year statute
of limitations has expired, or the petitioner is unable to meet
the stringent gatekeeping requirements of the amended § 2255."
In re Cradle, 290 F.3d at 539. Moreover, § 2255 is not
inadequate or ineffective for a prisoner like Murphy to raise an
Apprendi claim, even where he had no earlier opportunity to
raise the claim because Apprendi was not decided until after
his § 2255 motion was decided.*fn7 See Okereke, supra. As
the Third Circuit reasoned in Okereke:
Unlike the intervening change in law in In re
Dorsainvil that potentially made the crime for which
that petitioner was convicted non-criminal,
Apprendi dealt with sentencing and did not render
conspiracy to import heroin, the crime for which
Okereke was convicted, not criminal. Accordingly,
under our In re Dorsainvil decision, § 2255 was not
inadequate or ineffective for Okereke to raise his
Okereke, 307 F.3d at 120-21.
If § 2255 is not an inadequate or ineffective procedural
mechanism for a prisoner who had no other opportunity to raise an
Apprendi claim, it follows that it is not an inadequate or
ineffective vehicle for a petitioner to raise a Blakely or
Booker claim. See King v. Jeter, 2005 WL 195446 (N.D. Tex.
Jan. 27, 2005) (court has no jurisdiction to entertain Booker
claim under § 2241 because § 2255 is not inadequate or
ineffective); Krilich v. Winn, 2004 WL 2931265 (D. Mass. Dec.
20, 2004) (no jurisdiction to entertain Blakely claim under §
2241). Like Apprendi, both Blakely and Booker deal with
sentencing and does not decriminalize the conduct for which
Murphy was convicted. Accordingly, this Court lacks jurisdiction
to entertain Murphy's Apprendi, Blakely, and Booker claims under § 2241.
Okereke, 307 F.3d at 120-21.
Even if this Court had jurisdiction to entertain Murphy's
claims, he could not prevail because the Apprendi line of cases
does not apply retroactively to cases already final on direct
review. See Schriro v. Summerlin, 542 U.S. 348,
124 S.Ct. 2519 (2004) (because Ring is a new procedural rule, it does not
apply retroactively under § 2255 to cases final on direct
review);*fn8 United States v. Jenkins, 333 F.3d 151, 154
(3d Cir.) (Apprendi does not apply retroactively to first §
2255 motions because "[i]ts application affects only the
enhancement of a defendant's sentence after he or she has already
been convicted by proof beyond a reasonable doubt"), cert.
denied, 540 U.S. 932 (2003). See also In re Dean,
375 F.3d 1287, 1290 (11th Cir. 2004) (Summerlin "has strongly
implied that Blakely is not to be applied retroactively").
Similarly, § 2255 is not "inadequate or ineffective" to address a
claim based upon Booker, which is an extension of Apprendi.
See Smith v. Nash, 2005 WL 1965500 (3d Cir. Aug. 17, 2005)
(unpubl.). Moreover, the Court of Appeals for the Third Circuit has
recently held that Booker does not apply retroactively to cases
that became final on direct review prior to January 12, 2005, the
date Booker issued. See Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005), petition for cert. filed (Aug. 5, 2005)
Therefore, because § 2255 is not inadequate or ineffective for
Murphy's claims on his amended petition, this Court lacks
jurisdiction to entertain them under § 2241 and must dismiss the
Nevertheless, whenever a civil action is filed in a court that
lacks jurisdiction, "the court shall, if it is in the interest of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it was
filed." 28 U.S.C. § 1631. Here, Murphy fails to present any
circumstances that would entitle him in the interest of justice
to a transfer of this petition to the United States Court of Appeals for the Third Circuit for certification of his second
or successive § 2255 motion. See 28 U.S.C. § 2255 ¶ 8.
Moreover, it appears that it would be futile to transfer this
matter to the Third Circuit since it has already determined that
Apprendi and Booker claims cannot be raised in a second or
successive § 2255 motion because the Supreme Court has not made
it retroactive to cases on collateral review. Therefore, the
Court will dismiss the amended petition for lack of jurisdiction.
C. Claims Challenging Murphy's PSF and Custody Classification
In his initial petition, Murphy challenges his PSF and custody
classification. The matter was designated as a § 2241 petition
when filed; however, Murphy seeks both habeas relief and
injunctive relief with damages. Principally, Murphy contends that
the BOP's reliance on an allegedly inaccurate pre-sentence
investigation report ("PSR") violates the Privacy Act,
5 U.S.C. § 552a(e)(5). He further argues that his PSF as designated by the
BOP affects his custody classification, prison designation and
participation in prison programs.
This Court finds no violation of the Privacy Act here, as
alleged by Murphy. The information contained in Murphy's PSR is
accurately based on the court's findings with respect to
sentencing. As discussed earlier in this Opinion, the Third
Circuit has affirmed the sentencing court's enhanced sentence as imposed. Further, there has been no ruling that the factual basis
for the enhanced sentence was erroneous.
Moreover, as a general rule, an inmate does not have a liberty
interest in assignment to a particular institution or to a
particular security classification. See Wilkinson v. Austin,
125 S.Ct. 2384, 2393 (2005) (the Constitution does not give rise
to a liberty interest in avoiding transfers to more adverse
conditions of confinement); Olim v. Wakinekona, 461 U.S. 238,
245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976);
Montayne v. Haymes, 427 U.S. 236, 243 (1976); Moody v.
Daggett, 429 U.S. 78, 88 n. 9 (1976) (noting that prison
classification and eligibility for rehabilitative programs in the
federal prison system are matters delegated by Congress to the
"full discretion" of federal prison officials and thus implicate
"no legitimate statutory or constitutional entitlement sufficient
to invoke due process"). See also Sandin v. Connor,
515 U.S. 472, 484-86 (1995) (holding that a liberty interest is
implicated only where the action creates "atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life" or creates a "major disruption in his
Further, the placement of prisoners within the federal prison
system is among the "wide spectrum of discretionary actions that
traditionally have been the business of prison administrators
rather than of the federal courts." Id., 427 U.S. at 225. See also Walker v. Hughes, 558 F.2d 1247, 1252 (6th
Cir. 1977) ("Federal statutory law gives federal prison officials
full discretion in the treatment of prisoners and does not
restrict the authority of prison officials over the inmates as to
placement in more restrictive living status, transfer to other
prisons, subjection to significant and adverse effects on parole
dates, and deprivation of privileges."); Sesler v. Pitzer,
926 F. Supp. 130 (D. Minn. 1996) (Congress has given the BOP broad
power of discretion in the area of sentence reductions in
connection with drug rehabilitation programs), aff'd,
110 F.3d 569 (8th Cir.), cert. denied, 522 U.S. 877 (1997).
Therefore, because the BOP classification procedure is within
the discretion of the Attorney General as delegated to the
Director of the BOP, see 18 U.S.C. § 4081; 28 C.F.R. § 0.96,
Murphy has no legitimate constitutional basis to attack his
classification level unless he can show that the BOP's decision
was "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law." Administrative Procedure Act
("APA"), 5 U.S.C. § 706(2)(a); Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). The
BOP's decision was based on the PSR, which accurately reports the
sentencing criteria followed by the sentencing court. There has
been no showing that the sentencing court's determination was "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law."
Accordingly, the Court concludes that Murphy's initial petition
or complaint fails to show a federal constitutional violation
because the BOP has "full discretion" to determine his security
classification, PSF, job placement, prison assignments and
program participation based on the PSR as accurately reported.
Murphy has not demonstrated a statutorily or constitutionally
impermissible basis for the BOP's PSF and security classification
designation. Therefore, having failed to show any federal
statutory or constitutional violation that would entitle Murphy
to relief, this action will be dismissed.
For the reasons set forth above, the Court dismisses the
petition and amended petition for failure to state a cognizable
federal claim, and for lack of subject matter jurisdiction. An
appropriate Order follows.
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