Murphy v . USA 08-CV-224-JD 01/14/09
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Charles Murphy
v. Civil N o . 08-cv-224-JD
Opinion N o . 2009 DNH 007
United States of America
O R D E R
Petitioner, Charles Murphy, proceeding pro s e , filed a
petition under 28 U.S.C. § 2255 to vacate, set aside, or correct
the sentence ordered by the court in United States v . Charles
Murphy, Criminal N o . 05-cr-251-01-JD on May 3 0 , 2007. He claims
that his counsel provided ineffective assistance during the pre-
sentencing and sentencing process. The government filed an
objection to Murphy’s petition. Murphy filed a reply to the
government’s objection.
Background
On November 1 6 , 2005, Murphy was charged in an eight-count
indictment with one count of conspiracy to distribute cocaine and
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1); two
counts of distribution of cocaine base, in violation of
21 U.S.C.
§ 841(a)(1); and five counts of distribution of cocaine, in
violation of
21 U.S.C. § 841(a)(1). Between December of 2005,
and October of 2006, three attorneys were appointed to represent
Murphy, and each subsequently filed a motion to withdraw as
counsel. Two withdrew at Murphy’s request. On October 3 , 2006,
the court appointed Timothy Harrington as Murphy’s third
substitute counsel. Harrington represented Murphy through
sentencing.
On January 1 1 , 2007, Murphy pled guilty to his eight-count
indictment. In the plea agreement, Murphy agreed not to appeal
his conviction or sentence, and the government agreed not to
oppose a two-level reduction of Murphy’s adjusted offense level
and to recommend the low end of the applicable sentencing
guidelines. Murphy also agreed in the plea agreement that he was
completely satisfied with his attorney’s advice and
representation.
On March 9, 2007, Harrington filed a motion to withdraw upon
Murphy’s request and on the ground that Murphy refused to speak
with him regarding his upcoming sentencing. A hearing was held,
and the court denied the motion to withdraw. A sentencing
hearing was held on May 3 0 , 2007. Murphy was given a total
offense level of 25 and a criminal history category of V I ,
creating a sentencing range of 110 to 137 months imprisonment.
2
See U.S.S.G. Ch. 5 , p t . A.1 Murphy was sentenced to a term of
110 months for each count, to run concurrently. Murphy did not
appeal his conviction or his sentence.
On June 9, 2008, Murphy filed a § 2255 petition alleging
four challenges to his sentence. Three of his challenges alleged
that he received ineffective assistance of counsel and his fourth
challenge alleged that the district court improperly classified
him as a career criminal for purposes of sentencing. The
government filed a motion to dismiss, arguing that Murphy’s
petition was untimely and that his challenge to his
classification as a career criminal failed to allege a ground for
relief under § 2255. The court denied in part and granted in
part the government’s motion, finding that Murphy’s petition was
timely filed but that his challenge to his sentence was not
cognizable under § 2255. Before the court, therefore, are
Murphy’s remaining claims for ineffective assistance of counsel.
Standard of Review2
1
The 2006 edition of the Sentencing Guidelines was
applicable to Murphy at the time of his sentencing.
2
Murphy cites Haines v . Kerner, 404 U.S. 519 (1972) in his
reply to the government’s objection and asks that the court
liberally construe his § 2255 petition, given that he is pro s e .
The court is aware of this principle and has kept this in mind in
its review of Murphy’s petition.
3
Under 28 U.S.C. § 2255, a prisoner serving a sentence
imposed by a federal court who is
claiming the right to be released upon the ground that
the sentence was imposed in violation of the laws 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 sentence.
Once a petitioner requests relief under § 2255, the court
must grant an evidentiary hearing unless the petitioner’s motion
“(1) is inadequate on its face, or (2) although facially
adequate, is conclusively refuted as to the alleged facts by the
files and records of the case.” Carey v . United States, 50 F.3d
1097, 1098 (1st Cir. 1995); see Owens v . United States,
483 F.3d
4 8 , 57 (1st Cir. 2007). In the absence of an evidentiary
hearing, the petitioner’s allegations of fact are to be taken as
true, “unless those allegations are merely conclusory,
contradicted by the record, or inherently incredible.” Owens,
483 F.3d at 57 (quoting Ellis v . United States,
313 F.3d 636, 641
(1st Cir. 2002)) (internal quotation marks omitted).
Discussion
Murphy claims that his counsel made several errors at his
sentencing, constituting ineffective assistance of counsel.
Specifically, he contends that his counsel failed t o : (1) review
4
his presentence investigation report (“PSR”) with him, (2) make
specific objections to the PSR, and (3) assert mitigating factors
to reduce his sentence. To prevail on a claim of ineffective
assistance, a petitioner must show both that counsel’s
“representation fell below an objective standard of
reasonableness” and “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v . Washington, 466 U.S.
668, 6 8 8 , 694 (1984).
A. Review of PSR
Murphy claims that his counsel failed to review the PSR with
him, that there were portions which he did not understand which
his counsel refused to explain, and that he pointed out errors in
the PSR which his counsel refused to acknowledge. Murphy also
claims that he did not have adequate time to review the PSR
before sentencing. Murphy’s claims are belied by the record.
Murphy received a copy of the PSR on March 1 6 , 2007, a month
and a half before his sentencing hearing on May 3 0 , 2007,
providing him and his attorney with more than enough time to
review the PSR. Evidence of Murphy’s review of his PSR is found
in a March 3 0 , 2007, letter submitted by his counsel, Harrington,
to the probation officer, which cites eleven objections and
corrections Murphy wished to make to the PSR. These objections
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and corrections were all addressed by the probation officer, and
many were resolved in Murphy’s favor. Further, the court asked
Harrington at the sentencing hearing whether he reviewed the PSR
with Murphy, and he replied that he had and that Murphy objected
only to a two-point enhancement for a criminal trespass
conviction.3 Murphy was present at his sentencing, did not
object to his counsel’s statement, and stated to the court that
he had nothing further to add. Murphy has failed to show,
therefore, that his counsel’s representation fell below an
objective standard of reasonableness because his claims that
Harrington failed to review the PSR with him and that he had
inadequate time to review the PSR are contradicted by the record.
B. Objections to PSR
Murphy contends that his counsel failed to object to
that portion of the PSR which listed his prior convictions for
purposes of classifying him as a career criminal. Specifically,
he claims that the PSR should have counted two burglary
convictions as one conviction because they were related, as
defined in the Sentencing Guidelines, and that all of his state-
court convictions were invalid.
A defendant is classified as a career offender if the
3
The court struck the two points.
6
instant offense involves a felony that is a crime of violence or
a controlled substance offense, if the defendant is at least
eighteen years old at the time of the instant offense, and if the
defendant has “at least two prior felony convictions of . . . a
crime of violence.” U.S.S.G. § 4B1.1. The term “crime of
violence” includes the burglary or attempted burglary of a
dwelling which is “punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 4B1.2(a) and Commentary, Note 1
(noting that “crime of violence” includes the offense of
“attempting to commit such offenses”).
The term “two prior felony convictions” requires that “the
sentences for at least two of the . . . convictions are counted
separately.” U.S.S.G. § 4B1.2. “Prior sentences imposed in
unrelated cases are to be counted separately.” U.S.S.G. §
4A1.2(a)(2). “[P]rior sentences are considered related if they
resulted from offenses that (1) occurred on the same occasion,
(2) were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing.” Commentary, § 4A1.2, Note
3.
The PSR classified Murphy as a career offender based on two
prior burglary convictions. The PSR indicates that Murphy was
sentenced on April 1 2 , 1994, in a New Hampshire state court for a
burglary committed on May 1 1 , 1991, and, on the same day, in a
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different state court for a burglary committed on November 2 5 ,
1992. The court need not determine whether these two burglaries
are considered related.4 Even if the burglary sentences were
treated as a single prior felony conviction, Murphy had another
conviction on his record which constitutes a prior felony
conviction of a crime of violence.
On August 1 6 , 1993, Murphy was sentenced in a state court to
two and one half to five years imprisonment for an attempted
burglary of a residence committed on April 1 2 , 1991. 5 Murphy
therefore had at least two prior felony convictions for crimes of
violence and he was properly classified as a career offender for
purposes of sentencing. His counsel was not ineffective for
failing to object to that portion of Murphy’s PSR which listed
the two burglaries as separate convictions, because even if the
objection had merit, it would not have altered Murphy’s
classification as a career criminal.
4
Effective November 1 , 2007, the Sentencing Guidelines were
amended to provide “that two prior convictions are counted as one
if the resulting ‘sentences were imposed on the same day.’”
United States v . Godin, 522 F.3d 133, 134 (1st Cir. 2008)
(quoting U.S.S.G. § 4A1.2(a)(2) (2007)). This amendment,
however, was not made retroactive, see id. at 134-35, and
therefore, does not apply to Murphy’s sentence.
5
His sentence was initially deferred for one year and he was
placed on probation. A violation of probation was filed in April
1994. Murphy pled guilty, his deferred sentence was called
forward, and he was sentenced to fifteen months to five years
imprisonment.
8
Murphy also argues that his state-court convictions used to
determine his criminal history were invalid and that his counsel
failed to research and present this argument at his sentencing.
As a general rule, a defendant sentenced as a career offender may
not “attack the validity of previous state convictions used to
enhance his federal sentence” through a motion under § 2255 “on
the ground that his prior convictions were unconstitutionally
obtained.” Daniels v . United States, 532 U.S. 3 7 4 , 376 (2001).
A defendant is provided several opportunities to challenge the
constitutionality of a state-court conviction. If “a prior
conviction has not been set aside on direct or collateral review”
at the time the defendant is sentenced in federal court, the
prior “conviction is presumptively valid and may be used to
enhance the federal sentence.” Id. at 382. A defendant may,
however, challenge a prior conviction if it was obtained in
violation of his right to counsel. Id.
At the time of Murphy’s sentencing, none of the prior
convictions listed in the PSR had been set aside, and he does not
argue that any were obtained in violation of his right to
counsel. His prior convictions were therefore presumptively
valid, and the assistance of his counsel was not ineffective for
failure to challenge them.
C. Mitigating Factors
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Murphy contends that his counsel failed to raise the
following points at his sentencing which could have reduced his
sentence: he had been employed at the same job for years, he had
stayed out of trouble with the law for ten years, and the
similarities his case shared with his codefendants’ cases, in
which one codefendant was sentenced to sixty months
imprisonment.6 The record shows, however, that Murphy’s counsel
made each of these arguments during the sentencing proceeding.
Murphy’s counsel argued for a sixty month sentence and made
several arguments to support the requested sentence. He stated
that Murphy had been sober and drug-free for twelve years, that
this was his only drug possession or distribution offense, and
that he had engaged in no criminal activity for ten years prior
to this offense. He talked about Murphy’s commitment to his wife
and two young children, and that he had obtained a union job and
was able to purchase a home during his sobriety. Further,
Murphy’s counsel submitted letters to the court from Murphy’s
parents and brother, which also discussed the above factors.
Murphy’s counsel also made the court aware of the similar
6
Murphy also argues, in his reply to the government’s
objection, that the court engaged in gender bias in sentencing
him to a term which was longer than his codefendants. He also
makes several additional arguments in his reply regarding
specific mitigating factors which he alleges his attorney failed
to raise. The court will not review these claims because Murphy
did not include them in his § 2255 petition.
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cases involving codefendants Lisa Fellows (“Fellows”) and Kelly
Guay (“Guay”). At the time of Murphy’s sentencing, Fellows had
not yet been sentenced, and Guay had pled guilty to three counts
of distribution of cocaine base and was sentenced to sixty months
imprisonment. Before his sentencing, Murphy’s counsel filed a
motion requesting a copy of Guay’s sealed PSR for purposes of
comparing her case and sentence with Murphy’s. The court denied
this request, but ordered that a copy of the unsealed portion of
the sentencing transcript in Guay’s case be provided to Murphy.
At Murphy’s sentencing, his counsel argued that Guay’s case was
related, that Guay was also classified as a career criminal, and
that her sixty-month sentence should be considered by the court
in sentencing Murphy. Murphy’s counsel also mentioned Fellows’s
case as similar, although she had not yet been sentenced.
Murphy’s allegations that his counsel failed to make
arguments which could have reduced his sentence are contradicted
by the record. Murphy has therefore failed to show that he
received ineffective assistance from his counsel on this point.
Because all of Murphy’s claims are conclusively refuted by the
record, his § 2255 petition is therefore denied without a
hearing.
Conclusion
For the foregoing reasons, the petitioner’s motion (document
11
n o . 1 ) is denied. The clerk shall enter judgment accordingly and
close the case.
SO ORDERED.
C J J o s e p h A. DiClerico, Jr.
United States District Judge
January 1 4 , 2009
cc: Aixa Maldonado-Quinones, Esquire
Charles Murphy, pro se
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