UNITED STATES DISTRICT COURT FOR THE
 

DISTRICT OF NEW HAMPSHIRE
 

United States of America 

v. Criminal No. 05-cr-251-01-JD 

Charles Murphy 

o R D E R 

In January, 2007, Charles Murphy pled guilty to eight counts 

alleging various drug offenses. He was sentenced to 110 months 

in prison and 3 years of supervised release. Murphy did not 

pursue a direct appeal of his conviction or sentence, but on June 

9, 2008, he moved, pursuant to 28 U.S.C. § 2255, to vacate, set 

aside, or correct his sentence. See Murphy v. United States, 

Civ. No. 08-cv-224-JD. 1 Murphy's § 2255 motion was denied in two 

orders. Civ. doc. nos. 10, 14. Murphy moved for a certificate 

of appealability, which was denied, and he appealed the denial of 

his § 2255 motion. The First Circuit denied Murphy's application 

for a certification of appealability and terminated his appeal. 

Murphy v. United States, No. 09-1233 (1st Cir. Apr. 30, 2009); 

Civ. doc. no. 23. 

Proceeding pro se, Murphy now moves, under Federal Rule of 

Civil Procedure 60(b) (6), to vacate his sentence and dismiss the 

lDocket entries in Murphy's civil case will be referred to 

with the abbreviation ~Civ. doc. no." Docket entries in Murphy's 

criminal case will be referred to with the abbreviation ~Crim.

doc. no." 

Case 1:05-cr-00251-JD Document 125 Filed 08/30/10 Page 1 of 9
indictment against him. Without objecting directly to Murphy's 

motion, the government moved to dismiss the motion. Murphy 

objected to the government's motion to dismiss. 

Background 

On November 16, 2005, a federal grand jury returned an 

indictment charging Murphy with one count of conspiring to 

possess with the intent to distribute, and to distribute, cocaine 

and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a) (1); 

two counts of distributing cocaine base, in violation of 21 

U.S.C. § 841(a) (1); and five counts of distributing cocaine, in 

violation of 21 U.S.C. § 841(a) (1). Crim. doc. no. 1. After the 

appointment and withdrawal of three other attorneys,2 Attorney 

Timothy Harrington was appointed to represent Murphy on October 

3, 2006. Pursuant to the terms of a plea agreement, Murphy pled 

guilty to each of the counts against him on January 11, 2007. On 

March 9, 2007, Attorney Harrington moved to withdraw from the 

case because Murphy had requested that he do so and because there 

had been an irreparable breakdown in their attorney-client 

relationship. See Crim. doc. no. 60. After a hearing, the court 

denied the motion to withdraw. Harrington represented Murphy 

during his sentencing on May 30, 2007. The court imposed a total 

sentence of 110 months in prison followed by 3 years of 

supervised release. 

2TwO of the attorneys withdrew at Murphy's request. 

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On June 9, 2008, Murphy filed his § 2255 motion, alleging 

that Attorney Harrington provided ineffective assistance of 

counsel because he failed to review the presentence investigation 

report ("PSR") with Murphy, failed to make certain objections to 

the PSR, and failed to present mitigating evidence at Murphy's 

sentencing. Murphy also argued that the court erred by giving 

improper weight to certain sentencing factors. 

The government moved to dismiss Murphy's motion as untimely. 

Civ. doc. no. 5. The court granted the motion to dismiss because 

the § 2255 motion was untimely and Murphy provided no explanation 

for its untimeliness, and judgment was entered against him. Civ. 

dkt. entries for 7/31/2008. Murphy then moved to amend the 

judgment, on the ground that he did not receive the government's 

motion to dismiss. Murphy also argued that his § 2255 motion was 

timely. The court initially denied Murphy's motion to amend but 

then sua sponte vacated that order and granted the motion. See 

Civ. dkt. entries for 9/8/2009, Civ. doc. no. 9. The court then 

granted the government's motion to dismiss with respect to the 

portion of Murphy's § 2255 motion alleging that the trial court 

gave improper weight to the sentencing factors in 18 U.S.C. § 

3553 (a) . 

After the government filed its objection to the remainder of 

Murphy's § 2255 motion and Murphy responded to the objection, the 

court issued an order denying the § 2255 motion on January 14, 

2009. Civ. doc. no. 14. The court explained that Murphy's 

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allegation that Attorney Harrington did not review the PSR with 

Murphy was belied by the record, which showed that Murphy 

received a copy of the PSR a month and a half before his 

sentencing, and that Harrington submitted eleven objections to 

the probation officer that Murphy wished to make. Moreover, 

Murphy was present at his sentencing, did not object to 

Harrington's statements, and told the court he had nothing 

further to add. The court rejected Murphy's argument regarding 

Harrington's failure to object to the prior convictions in the 

PSR because the convictions were presumptively valid. Murphy's 

argument that Harrington failed to present certain mitigating 

evidence at sentencing was also rejected because the record 

reflected that Harrington had, in fact, presented that mitigation 

evidence and argument at sentencing. 

On February 6, 2009, Murphy filed both a notice of appeal 

and a motion for a certificate of appealability. Civ. doc. nos. 

16, 17. This court denied Murphy's motion, and the First Circuit 

denied his appeal. Civ. doc. nos. 18, 23. 

Discussion 

On July 6, 2010, Murphy filed a motion under Federal Rule of 

Civil Procedure 60(b) (6), arguing that the indictment should be 

dismissed because it did not contain the proper mens rea for a 

conviction under sections 841(a) (1) and 846. See Crim. doc. no. 

122. Murphy contends that Attorney Harrington, as well as the 

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two previous appointed attorneys, were ineffective for failing to 

challenge the indictment's sufficiency. Murphy also argues that 

he was not charged under the penalty provisions of 21 U.S.C. § 

841(b), which violated his rights under the Fifth Amendment to 

the u.s. Constitution. 

Without objecting to Murphy's motion or otherwise responding 

to it on the merits, the government moves to dismiss the motion. 

See Crim. doc. no. 123. The government contends that Murphy's 

motion is an impermissible second § 2255 motion, that Murphy has 

abused the writ of habeas corpus by failing to raise his 

arg"uments in his first § 2255 motion, and that the First Circuit 

has not authorized Murphy to pursue a second § 2255 motion, 

leaving this court without jurisdiction to decide the motion. 

The government also argues that, even if the court considered 

Murphy's motion under Rule 60(b) (6), it should be denied as 

untimely. 

Murphy objects to the government's motion to dismiss, 

arguing that his delay in filing his Rule 60(b) (6) motion is 

justified because he is not an attorney and therefore he did not 

know of the allegations he is now raising when he filed his § 

2255 motion. See Crim. doc. no. 124. 

A. Applicability of Rule 60(b) 

Rule 60(b) allows a court, in a variety of enumerated 

circumstances, to "relieve a party. . from a final judgment, 

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order, or proceeding." Rule 60(b) (6), the ~catch-all" provision, 

permits the court to do so for ~any other reason that justifies 

relief." Murphy filed his motion in his criminal case, however. 

Criminal cases are governed not by the Federal Rules of Civil 

Procedure, but rather by the Federal Rules of Criminal Procedure. 

See Fed. R. Civ. P. 1 (~[These rules govern the procedure in all 

civil actions and proceedings.") (emphasis added); Fed. R. erim. 

P. l(a) (1) (~These rules govern the procedure in all criminal 

proceedings.") (emphasis added). As filed, therefore, Rule 60(b) 

cannot provide the relief Murphy seeks. Murphy is proceeding pro 

se, however, and therefore his motion will be construed 

liberally. See,~, United States v. Ciampi, 419 F.3d 20, 24 

(1st eire 2005) (~pro se habeas petitions normally should be 

construed liberally in petitioner's favor"); Boivin v. Black, 225 

F.3d 36, 43 (1st eire 2000) (~courts hold pro se pleadings to 

less demanding standards than those drafted by lawyers"). 

Turning to the Federal Rules of Criminal Procedure, Rule 

35(a) allows the court to ~correct a sentence that resulted from 

arithmetical, technical or other clear error," while Rule 35(b) 

allows the court, upon the government's motion, to reduce a 

sentence if the defendant ~provided substantial assistance in 

investigating or prosecuting another person." A motion under 

Rule 35(a) must be brought within fourteen days after sentencing, 

while a motion under Rule 35(b) must be brought by the government 

within one year of sentencing. Construed as a request under Rule 

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35(a), therefore, Murphy's motion fails because it was filed in 

July of 2010, more than three years after his sentencing. 

Moreover, with respect to Rule 35(b), the government did not file 

a motion within one year of Murphy's sentencing indicating that 

he provided substantial assistance. 

B. 28 U.S.C. § 2255 

Murphy argues that his motion should not be treated as a § 

2255 petition. The Court of Appeals for the First Circuit, 

however, has made it clear that "a Rule 60(b) motion that 

principally challenges the constitutionality of a habeas 

petitioner's underlying conviction should be treated as a second 

or successive habeas petition under the Antiterrorism and 

Effective Death Penalty Act." Munoz v. United States, 331 F.3d 

151, 152 (1st Cir. 2003). Here, Murphy argues that the 

indictment was defective and that three of his attorneys provided 

ineffective assistance of counsel by failing to object to the 

indictment. He contends that his sentence must be vacated 

because his rights under the Fifth, Sixth, and Fourteenth 

Amendments were violated. Murphy's motion, then, principally 

challenges the constitutionality of his underlying conviction and 

sentence. As such, the motion constitutes a second and 

successive § 2255 petition. See Lara v. United States, No. 00­

554-ML, 2008 WL 608323, at *4 (D.R.I. Mar. 4, 2008) (where 

defendant's motion "does not contest any procedural irregularity 

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in the procurement of the judgment dismissing his § 2255 motion 

but rather seeks to attack the validity of his underlying 

conviction and sentence. ., the motion indisputably 

constitutes a second and successive § 2255 petition") (citing 

Munoz, 331 F.3d at 153). 

Because his motion is a second and successive petition, 

Murphy may not file it without the authorization of the appellate 

court, which he has not received. The requirement for preauthorization is "an allocation of subject-matter jurisdiction to 

the court of appeals." United States v. Barrett, 178 F.3d 34, 41 

(1st Cir. 1999) (quotation marks omitted). "[A] district court, 

faced with an unapproved second or successive habeas petition, 

must either dismiss it or transfer it to the appropriate court of 

appeals." Id., 178 F.3d 34, 41. Murphy's motion is dismissed 

for lack of jurisdiction. 

Conclusion 

For the foregoing reasons, Murphy's motion under Rule 

60(b) (6) (doc. no. 122) is denied. The government's motion to 

dismiss (doc. no. 123) is granted. 

Certificate of Appealability 

The Rules Governing Section 2255 Proceedings require the 

court to "issue or deny a certificate of appealability when it 

enters a final order adverse to the party." Rule 11(a). The 

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court will issue the certificate ~only if the applicant has made 

a substantial showing of the denial of a constitutional right." 

28 U.S.C. § 2253(c) (2). Murphy has failed to make such a 

showing. Accordingly, a certificate of appealability is denied. 

SO ORDERED. 

A. DiClerico, Jr. 

States District Judge 

August 30, 2010 

cc:	 Charles Murphy, pro se 

Alfred J.T. Rubega, Esq. 

Aixa Maldonao-Quinones, Esq. 

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