Murphy v. Federal Bureau of Prisons

Filing 4

ORDER, the Petition 1 is dismissed for failure to name a proper respondent; Petitioner has 30 days to file a first amended petition in compliance with this Order; if Petitioner fails to comply with this order, the Clerk must, without further notice, enter a judgment of dismissal of this action. Signed by Judge G Murray Snow on 8/15/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Phillip Murphy,
Petitioner,

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vs.

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Federal Bureau of Prisons,
Respondent.

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No. CV 12-1390-PHX-GMS (DKD)
ORDER

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Petitioner William Phillip Murphy, who is resides at Behavioral Systems Southwest,

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a federal halfway house in Florence, Arizona, has filed a pro se Petition Under 28 U.S.C.

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§ 2241 for a Writ of Habeas Corpus by a Person in Federal Custody and paid the $5.00 filing

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fee. (Doc. 1.) Because Petitioner fails to name a proper Respondent, his Petition will be

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dismissed with leave to amend.

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I.

Background

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Petitioner was convicted by a jury of being a felon in possession of a firearm in

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violation of 18 U.S.C. §§ 922(g) & 924(a)(2) in this District. United States v. Murphy, No.

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CR09-0479-PHX-JAT, doc. 112. On April 1, 2010, Petitioner was sentenced to 45 months

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in prison followed by three years on supervised release. Id., doc. 132. On July 21, 2011, the

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Ninth Circuit denied Petitioner’s appeal. Id., doc. 153.

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that Petitioner participate in a drug treatment program. On October 1, 2010, he entered into

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Petitioner alleges the following additional facts: the sentencing Court recommended

a Residential Drug Abuse Program (RDAP). (Doc. 1, ex. 1.) On October 28, 2010,

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Petitioner was denied an early release incentive pursuant to 18 U.S.C. § 3621(e) as precluded

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under Program Statement (PS) 5162.05 based on his current conviction and an August 1989

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conviction, pursuant to 28 C.F.R. § 550.55. (Id. at 2.) Petitioner completed RDAP on July

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22, 2011. On April 12, 2011, Petitioner commenced the administrative process concerning

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the denial of an early release incentive pursuant to PS 1330.7. Petitioner based his appeals

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on Ninth Circuit decisions, unlike the Fifth Circuit, where he served his sentence.

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Petitioner’s appeals were denied pursuant to Fifth Circuit authority. Petitioner is currently

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housed in a residential re-entry center in Arizona and remains subject to BOP authority.

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Petitioner argues that he is eligible for early release incentives under Ninth Circuit law and

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that he has administratively exhausted his claims.

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II.

Petition

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Petitioner names Federal Bureau of Prisons as the Respondent. He raises two grounds

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for relief. In Ground One, he alleges that he has been wrongly denied an early release

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incentive by BOP. In Ground Two, Petitioner alleges that the BOP denied a petition for

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transfer from a facility in the Fifth Circuit to one in the Ninth Circuit in order to deny him

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an early release incentive.

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III.

Failure to Name Custodian as a Respondent

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petitioner for habeas relief must name the official having custody of him as a respondent to

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the petition. Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004) (citing Stanley v. California

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Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994)). Failure to name the proper respondent

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deprives the court of personal jurisdiction over the custodian. Smith, 392 F.3d at 354. In this

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case, it appears that Petitioner is in the custody of Behavioral Systems Southwest in Florence

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and that its director is the appropriate respondent. See Stratton v. Hall, No. 10-107, 2010

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WL 5922110, at *1 (E.D. Ky. Dec. 28, 2010) (substituting half-way house director as

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respondent following transfer to half-way house); Fazzini v. U.S. Parole Com’n, .263 Fed.

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Appx. 483 (7th Cir. 2008) (substituting the director of a halfway house as respondent on

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Petitioner names the Federal Bureau of Prisons (BOP) as the only respondent. A

appeal). Accordingly, the Court will dismiss the Petition with leave to file an amended
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petition naming a proper respondent.

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IV.

Leave to Amend

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For the foregoing reasons, the Petition will be dismissed with leave to amend. Within

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30 days, Petitioner may submit a first amended petition to cure the deficiencies outlined

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above. The Clerk of Court will mail Petitioner a court-approved form for filing a first

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amended petition under 28 U.S.C. § 2241 by a federal pro se petitioner.

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Petitioner must clearly designate on the face of the document that it is the “First

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Amended Petition.” The first amended petition must be retyped or rewritten in its entirety

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on the court-approved form and may not incorporate any part of the original Petition by

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reference.

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V.

Warnings

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A.

Address Changes

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Petitioner must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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B.

Copies

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Petitioner must serve Respondent, or counsel if an appearance has been entered, a

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copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a

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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner

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must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to

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comply may result in the filing being stricken without further notice to Petitioner.

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If Petitioner fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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C.

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Possible Dismissal

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IT IS ORDERED:

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(1)

The Petition is dismissed for failure to name a proper respondent. (Doc. 1.)

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Petitioner has 30 days from the filing date of this Order in which to file a first amended

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petition in compliance with this Order.

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(2)

If Petitioner fails to file an amended petition within 30 days, the Clerk of Court

must, without further notice, enter a judgment of dismissal of this action.
(3)

The Clerk of Court must mail Petitioner a court-approved form for filing a

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“Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal

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Custody.”

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DATED this 15th day of August, 2012.

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Instructions for Filing a Petition Under 28 U.S.C. § 2241
for Writ of Habeas Corpus by a Person in Federal Custody
in the United States District Court for the District of Arizona
1. Who May Use This Form. If you are detained in Arizona, you may use this form to
challenge your detention by federal immigration authorities or to challenge the execution of
your federal sentence by the United States Bureau of Prisons. You are asking for release or
earlier release on the grounds that your detention or future detention violates the United States
Constitution or other federal law. You should not use this form to challenge a state or federal
judgment of conviction or sentence. If you are challenging a conviction or sentence entered
against you by a state court, you should file a petition under 28 U.S.C. § 2254 for writ of habeas
corpus by a person in state custody. If you are challenging a judgment of conviction or sentence
entered by a federal court, you should file a motion under 28 U.S.C. § 2255 to vacate sentence
in the federal court that entered the judgment. Any claim that may be brought or has already
been brought in a motion under 28 U.S.C. § 2255 may not be brought using this form unless it
appears that the § 2255 motion is inadequate or ineffective to test the legality of your detention.
This form should not be used in death penalty cases. If you were sentenced to death, you are
entitled to the assistance of counsel and you should request the appointment of counsel.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a) provides that habeas corpus
petitions must be filed on the court-approved form. The form must be typed or neatly
handwritten. All questions must be answered clearly and concisely in the appropriate space on
the form. If needed, you may attach additional pages. The form, however, must be completely
filled in to the extent applicable. You do not need to cite law. If you want to file a brief or
arguments, you must attach a separate memorandum.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. The Filing Fee. The filing fee for this action is $5.00. If you are unable to pay the filing fee,
you may request permission to proceed in forma pauperis by completing and signing the
Application to Proceed In Forma Pauperis provided with the petition form. You must have an
official at the prison or jail complete the certificate at the bottom of the application form. If the
amount of money in your account exceeds $25.00, you must pay the $5.00 filing fee. LRCiv
3.5(b).
5. Original and Judge’s Copy. You must send an original plus one copy of your petition and
of any other document submitted to the Court. You must send one additional copy to the Court
if you wish to have a file-stamped copy of the document returned to you. All copies must be
identical to the original. Copies may be legibly handwritten.
6. Where to File. You should file your petition in the division where you are detained. See
LRCiv 5.1(a). If you are detained in Maricopa, Pinal, Yuma, La Paz, or Gila County, you
should file your petition in the Phoenix Division. If you are detained in Apache, Navajo,
Coconino, Mohave, or Yavapai County, you should file your petition in the Prescott Division.
Revised 3/9/07

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If you are detained in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, you should file
your petition in the Tucson Division. See LRCiv 5.1(b) and 77.1(a). Mail the original and one
copy of your petition with the $5.00 filing fee or the application to proceed in forma pauperis
to:
Phoenix & Prescott Divisions:
OR
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and respondents in writing of
any change in your mailing address. Failure to notify the Court of any change in your mailing
address may result in the dismissal of your case.
8. Certificate of Service. You must provide the respondents with a copy of any document you
submit to the Court (except the initial petition and application to proceed in forma pauperis).
Each original document (except the initial petition and application to proceed in forma pauperis)
must include a certificate of service on the last page of the document stating the date a copy of
the document was mailed to the respondents and the address to that it was mailed. Fed. R. Civ.
P. 5(a), (d). Any document received by the Court which does not include a certificate of service
may be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed
this
(month, day, year) to:
Name:
Address:
Attorney for Respondent(s)
(Signature)
9. Amended Petition. If you need to change any of the information in the initial petition, you
must file an amended petition. The amended petition must be written on the court-approved
petition for writ of habeas corpus form. You may file one amended petition without leave
(permission) of Court before any respondent has answered your original petition. See Fed. R.
Civ. P. 15(a). After any respondent has filed an answer, you must file a motion for leave to
amend and lodge (submit) a proposed amended petition. LRCiv 15.1. An amended petition
may not incorporate by reference any part of your prior petition. LRCiv 15.1(a)(2). Any
grounds not included in the amended petition are considered dismissed.
10. Exhibits. If available, you should attach a copy of all federal court and administrative
written decisions regarding the detention you are challenging. You should not submit any other
exhibits with the petition. Instead, the relevant information should be paraphrased in the
petition.
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11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff
of any judge. The only appropriate way to communicate with the Court is by filing a written
pleading or motion.
12. Exhaustion. In order to proceed with this petition in federal court, you ordinarily must
exhaust any administrative remedies available to you. If you did not fairly present each of your
grounds to the appropriate administrative agencies, your petition may be dismissed.

FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your
petition being stricken or dismissed by the Court. All questions must be answered concisely in
the proper space on the form. If you need more space, you may attach additional pages. But
the form must be completely filled in to the extent applicable. If you attach additional pages,
be sure to identify which section of the petition is being continued and number all pages.

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Name and Prisoner Number/Alien Registration Number

Place of Confinement

Mailing Address

City, State, Zip Code

(Failure to notify the Court of your change of address may result in dismissal of this action.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
(Full Name of Petitioner)
Petitioner,
vs.

(Name of Warden, Jailor or authorized person
having custody of Petitioner)
Respondent.

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) CASE NO.
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(To be supplied by the Clerk)
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PETITION UNDER 28 U.S.C. § 2241
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FOR A WRIT OF HABEAS CORPUS
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BY A PERSON IN FEDERAL CUSTODY
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PETITION

1.

What are you challenging in this petition?
Immigration detention
Bureau of Prisons sentence calculation or loss of good-time credits
Probation, parole or supervised release
Other (explain):

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2.

(a) Name and location of the agency or court that made the decision you are challenging:

(b) Case or opinion number:
(c) Decision made by the agency or court:

Revised 3/9/07

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(d) Date of the decision:
3.

Did you appeal the decision to a higher agency or court?

Yes G

No G

If yes, answer the following:
(a) First appeal:
(1) Name of the agency or court:
(2) Date you filed:
(3) Opinion or case number:
(4) Result:
(5) Date of result:
(6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(b) Second appeal:
(1) Name of the agency or court:
(2) Date you filed:
(3) Opinion or case number:
(4) Result:
(5) Date of result:
(6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(c) Third appeal:
(1) Name of the agency or court:
(2) Date you filed:
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(3) Opinion or case number:
(4) Result:
(5) Date of result:
(6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

4.

If you did not appeal the decision to a higher agency or court, explain why you did not:

5. Other than the appeals listed above, have you filed any other petitions, applications or motions concerning
the issues raised in this petition?
Yes G
No G
If yes, answer the following:
(a) Name of the agency or court:
(b) Date you filed:
(c) Opinion or case number:
(d) Result:
(e) Date of result:
(f) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

6. For this petition, state every ground on which you claim that you are being held in violation of the
Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four
grounds. State the facts supporting each ground.
CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available
administrative remedies on each ground on which you request action by the federal court.

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GROUND ONE:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground One?

Yes G

No G

(c) If yes, did you present the issue to:
G The Board of Immigration Appeals
G The Office of General Counsel
G The Parole Commission
G Other:
(d) If you did not exhaust all available administrative remedies relating to Ground One, explain why:

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GROUND TWO:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Two?

Yes G

No G

(c) If yes, did you present the issue to:
G The Board of Immigration Appeals
G The Office of General Counsel
G The Parole Commission
G Other:
(d) If you did not exhaust all available administrative remedies relating to Ground Two, explain why:

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GROUND THREE:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Three?

Yes G

No G

(c) If yes, did you present the issue to:
G The Board of Immigration Appeals
G The Office of General Counsel
G The Parole Commission
G Other:
(d) If you did not exhaust all available administrative remedies relating to Ground Three, explain why:

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GROUND FOUR:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Four?

Yes G

No G

(c) If yes, did you present the issue to:
G The Board of Immigration Appeals
G The Office of General Counsel
G The Parole Commission
G Other:
(d) If you did not exhaust all available administrative remedies relating to Ground Four, explain why:

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Please answer these additional questions about this petition:
7. Are you challenging your conviction or sentence in any of the grounds raised above? Yes G
No G
(Claims challenging a federal conviction or sentence may only be raised in a motion under 28 U.S.C. § 2255,
unless the § 2255 motion is legally inadequate or ineffective.)
If yes, answer the following:
(a) Have you filed a motion under 28 U.S.C. § 2255?

Yes G

No G

If yes, answer the following:
(1) Name of court:
(2) Case number:
(3) Opinion or case number:
(4) Result:
(5) Date of result:
(6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(b) Explain why the remedy under § 2255 is inadequate or ineffective:

8.

If this case concerns immigration removal proceedings, answer the following:
(a) Date you were taken into immigration custody:
(b) Date of removal or reinstatement order:
(c) Did you file an appeal with the Board of Immigration Appeals?
(1) Date you filed:
(2) Case number:
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Yes G

No G

(3) Result:
(4) Date of result:
(5) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(d) Did you file an appeal with the federal court of appeals?

Yes G

No G

(1) Name of the court:
(2) Date you filed:
(3) Case number:
(4) Result:
(5) Date of result:
(6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

9.

Petitioner asks that the Court grant the following relief:

or any other relief to which Petitioner may be entitled. (Money damages are not available in habeas corpus
cases.)

I declare under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of
Habeas Corpus was placed in the prison mailing system on
(month, day, year).

Signature of Petitioner

Signature of attorney, if any

Date
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