UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Charles Murphy

v. Civil No. 08-cv-224-JD

United States of America

O R D E R

Petitioner, Charles Murphy, proceeding pro se, filed a

petition seeking relief under 28 U.S.C. § 2255. The government

filed a motion to dismiss, arguing that the petition was untimely

filed and that Murphy’s challenge based on the court’s

consideration of certain sentencing factors cannot be grounds for

§ 2255 relief in this case. Murphy failed to file an objection

to the government’s motion, which was granted, and judgment was

entered accordingly. Upon receipt of the court’s judgment,

Murphy filed a motion to alter or amend the judgment on the

ground that he never received the government’s motion to dismiss. 

In addition, he argued that his § 2255 petition was timely filed. 

The government filed a “motion in response to petitioner’s

motion,” stating that a copy of the government’s motion to

dismiss was mailed to Murphy and arguing that the petition was

untimely filed. The government states, without citing authority

for the proposition, that judgment becomes final on the date it

was entered when the defendant does not file a direct appeal. 

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The government also contends that Murphy failed to certify that

he used the prison mailing system to file his petition, which

would deprive him of the benefit of Rule 3(d) of the Rules

Governing Section 2255 Proceedings.

The court will accept that Murphy did not receive a copy of

the government’s motion to dismiss. The government represents

that it has now sent Murphy a duplicate of the motion. Murphy

addressed the issue of the timeliness of his petition in his

motion to alter or amend judgment. He did not address the

government’s challenge to that part of his petition, “Ground

Three,” that challenges his sentence, contending that the court

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

3553(a). Therefore, the court will consider the issue of timely

filing, based on the parties’ filings to date, and will give

Murphy an opportunity to respond to the government’s motion to

dismiss “Ground Three.” 

Section 2255 provides, in pertinent part: “A 1-year period

of limitation shall apply to a motion under this section. The

limitation period shall run from the latest of - (1) the date on

which the judgment of conviction becomes final.” 28 U.S.C. §

2255(f). Although the First Circuit does not appear to have

addressed the issue, other courts have construed § 2255(f)(1), in

the context of a petitioner who did not file a direct appeal, to

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mean that the judgment of conviction becomes final after the tenday time period for bringing a direct appeal has expired. See

Benitez v. United States, 521 F.3d 625, 629 (6th Cir. 2008); see

also Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005)

(“[A]n unappealed federal criminal judgment becomes final when

the time for filing a direct appeal expires.”). 

The judgment in Murphy’s criminal case was entered on May

31, 2007, and Murphy did not file an appeal. See United States

v. Murphy, Crim. No. 05-cr-251-JD (Dkt. no. 72, May 31, 2007).

The judgment became final on June 14, 2007, when the period for

filing an appeal expired. See Fed. R. App. P. 4(b)(1)(A)

(providing ten days from entry of judgment to file appeal); Fed.

R. App. P. 26(a)(2) (excluding intermediate Saturdays and

Sundays). The one-year limitations period under § 2255(f)(1) did

not expire until June 14, 2008. Therefore, Murphy filed his §

2255 petition on June 9, 2008, within the time allowed. Rule

3(d) does not apply in this case.

Conclusion

For the foregoing reasons, the petitioner’s motion to alter

or amend judgment (document no. 7) is granted. The judgment

entered on July 31, 2008, dismissing the case, is vacated. 

The petition for relief under § 2255 was timely filed. The

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petitioner shall file his response to that part of the

government’s motion to dismiss that challenges “Ground Three” of

his petition, on or before September 25, 2008.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 9, 2008

cc: Aixa Maldonado-Quinones, Esquire

Charles Murphy, pro se

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