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MURPHY v. DEROSA

October 3, 2005.

SEAN WILLIAM MURPHY, Petitioner,
v.
C.J. DEROSA, et al., Respondents.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

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 months.

  Murphy filed a direct appeal, which the United States Court of Appeals for the Third Circuit denied in an unpublished memorandum opinion.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).

  II. DISCUSSION

  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. ...


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