UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Charles Murphy

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

Opinion No. 2008 DNH 185

United States of America

O R D E R

Petitioner, Charles Murphy, proceeding pro se, 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 No. 05-cr-251-01-JD on May 30, 2007. Before the

court is the government’s motion to dismiss “Count Three” of

Murphy’s § 2255 petition which contends that the court gave

improper weight to the sentencing factors in 18 U.S.C. § 3553(a).

Background

On January 11, 2007, Murphy pled guilty to eight counts

involving conspiracy to distribute, and distribution of, certain

controlled substances. In the plea agreement, Murphy agreed not

to appeal his conviction or sentence. Judgment was entered and

he was sentenced to a term of 110 months for each count, to run

concurrently. Murphy’s sentence reflected, in part, the

existence of prior convictions, a four-level downward departure,

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and the lowest sentence available for his guideline range. On

June 9, 2008, Murphy filed a § 2255 petition alleging four

challenges to his sentence. Three of his challenges allege that

he received ineffective assistance of counsel. His fourth

challenge, “Ground Three,” alleges that the district court

improperly weighed the sentencing factors under 18 U.S.C. §

3553(a) and § 4B1.1 of the Sentencing Guidelines. 

In response to Murphy’s § 2255 petition, the government

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

filed and that “Count Three” of Murphy’s petition failed to

allege grounds for § 2255 relief. 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 motion to dismiss, and he

also argued that his § 2255 petition was timely filed. He did

not address the government’s challenge to “Ground Three” of his §

2255 petition. 

The government responded that a copy of the motion to

dismiss was mailed to Murphy and further argued that the petition

was untimely filed. The court accepted Murphy’s claim that he

never received the motion to dismiss, and found that his petition

was timely filed. Murphy’s motion to alter or amend the judgment

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was granted and the court vacated its order granting the

government’s motion to dismiss. A September 25, 2008 deadline

was set for Murphy to respond to the government’s challenge to

“Ground Three” of his § 2255 petition. Murphy did not file a

response within the deadline.

Challenge to Sentencing

“Count Three” of Murphy’s § 2255 petition contends that the

district court erred by classifying him as a career criminal for

purposes of sentencing. He asserts that the court records from

his prior convictions were inaccurate and not certified, and

therefore, could not be used by the court to establish that he

was a career offender under U.S.S.G. § 4B1.1. He also claims

that there was a disparity between his sentence and that of other

defendants with similar records. The government argues that

these claims, which do not allege constitutional infirmities, may

not be raised for the first time in a § 2255 petition.

Section 2255 provides that a prisoner may move to vacate,

set aside, or correct his sentence “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

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attack.” 28 U.S.C. § 2255. “[T]he Supreme Court has narrowly

confined the scope and availability of collateral attack for

claims that do not allege constitutional or jurisdictional

errors. Such claims are properly brought under § 2255 only if

the claimed error is ‘a fundamental defect which inherently

results in a complete miscarriage of justice’ or ‘an omission

inconsistent with the rudimentary demands of fair procedure.’” 

Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) quoting

Hill v. United States, 368 U.S. 424, 428 (1962). 

The First Circuit permits claims under § 2255 which

collaterally attack a federal sentence only in limited

circumstances. See, e.g., United States v. Pettiford, 101 F.3d

199 (1st Cir. 1996) (allowed where petitioner sought reduction of

federal sentence on ground that prior state convictions relied

upon by court to enhance sentence were subsequently vacated by

state courts). However, claims that the district court

misapplied sentencing guidelines rarely can satisfy the

“miscarriage of justice” standard and therefore, are generally

“not cognizable under § 2255.” Knight, 37 F.3d at 773; see,

e.g., Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996);

Scott v. United States, 997 F.2d 340, 341-42 (7th Cir. 1993). 

Further, absent “extraordinary circumstances,” sentencing

disparities between similarly situated defendants “does not rise

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to the level of a miscarriage of justice.” Diaz-Cruz v. United

States, 77 F.3d 460 (table), 1996 WL 84112, at *1 (1st Cir. 1996)

(unpublished decision) (“[T]he general rule in this circuit is

that it is not proper for a district court to depart from a

guideline range in an effort to equalize the sentences of

similarly situated defendants.”).

Murphy’s challenge to his sentence in “Ground Three” of his

§ 2255 petition does not allege a constitutional or

jurisdictional error and is therefore reviewed under the

“miscarriage of justice” standard applied to nonconstitutional

claims. Under this standard, Murphy’s claim under “Ground Three”

of his petition does not warrant § 2255 review. Murphy’s

allegation that the court erred in relying upon inaccurate prior

convictions, without more, does not establish “a fundamental

defect which inherently results in a complete miscarriage of

justice.” Knight, 37 F.3d at 772. Further, while Murphy alleges

that defendants with similar backgrounds received shorter

sentences than he, Murphy fails to allege any “extraordinary

circumstances” surrounding the alleged disparities required for §

2255 review. Moreover, Murphy’s sentence reflects a four-level

downward departure, and the lowest sentence available within his

guideline range. His challenge to his sentence in “Ground Three”

of his petition, therefore, is not cognizable under § 2255. 

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Conclusion

For the foregoing reasons, the government’s motion to

dismiss (document no. 5) is granted as to “Ground Three” and is

otherwise denied for the reasons stated in the court’s order

issued on September 9, 2008. The court orders the United States

Attorney to file an answer within sixty (60) days of the date of

this order, which answer shall provide a detailed response, with

appropriate references to the record when necessary, to grounds

one, two, and four asserted by the petitioner.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 2, 2008

cc: Aixa Maldonado-Quinones, Esquire

Charles Murphy, pro se

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