Murphy v. Federal Bureau of Prisons

Filing 6

ORDER, the Clerk must serve a copy of the Summons, the First Amended Petition 5 , and this Order upon the United States Attorney for the District of Arizona and must also send a copy of the Summons, the First Amended Petition, and this Order to the United States Attorney General and to Respondent; this matter is referred to Magistrate Judge David K Duncan for further proceedings and a Report and Recommendation. Signed by Judge G Murray Snow on 10/11/12. (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 resides at Behavioral Systems Southwest, a

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federal halfway house in Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2241

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

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(Doc. 1.) Because Petitioner failed to name a proper Respondent, his Petition was dismissed

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with leave to amend. (Doc. 4.) Petitioner has filed a First Amended Petition in which he

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names the Federal Bureau of Prisons (BOP) and the Program Director of Behavioral Systems

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Southwest, Eleanor Jaurez. (Doc. 5.) The Court will require a response to the First

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Amended Petition.

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I.

Background

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

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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Petitioner alleges the following additional facts: the sentencing Court recommended

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

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a Residential Drug Abuse Program (RDAP). (Doc. 5, 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. (Id.) On April 12, 2011, Petitioner commenced the administrative process

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concerning the denial of an early release incentive pursuant to PS 1330.7. (Id.) Petitioner

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based his appeals on Ninth Circuit decisions that differed from Fifth Circuit law regarding

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early release incentives. Petitioner’s appeals were denied pursuant to Fifth Circuit authority.

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Petitioner is now housed in a residential re-entry center in Arizona and remains subject to

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BOP authority. Petitioner argues that he is eligible for early release incentives under Ninth

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Circuit law and that he has administratively exhausted his claims.

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II.

First Amended Petition

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Program Director of Behavioral Systems Southwest as Respondents. Petitioner raises two

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grounds for relief. In Ground One, Petitioner alleges that although convicted in Arizona, he

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was transferred to FCI-Bastrop, Texas, to serve his sentence. Petitioner contends that BOP

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sent him to Texas with the knowledge and intent that he would be denied RDAP credit under

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Fifth Circuit law, unlike Ninth Circuit law. Petitioner argues that he is now entitled to a

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reduction of his sentence for successfully completing his RDAP program under Ninth Circuit

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law. In Ground Two, Petitioner alleges that he was wrongfully denied a transfer back to

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Arizona as an incentive for RDAP participation, where he would have received early release

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credit for completing RDAP. The Court will require Respondent to answer the Petition.

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In his First Amended Petition, Petitioner names the BOP and Eleanor Jaurez, the

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III.

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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C.

Possible Dismissal

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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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IT IS ORDERED:

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(1)

The Clerk of Court must serve a copy of the Summons, the First Amended

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Petition (Doc. 5), and this Order upon the United States Attorney for the District of Arizona

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by certified mail addressed to the civil process clerk at the office of the United States

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Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of

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Court must also send by certified mail a copy of the Summons, the First Amended Petition,

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and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to

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Respondent pursuant to Rule 4(i)(2) of the Federal Rules of Civil Procedure.

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(2)

Respondent must answer the First Amended Petition within 20 days of the date

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of service. Respondent shall not file a dispositive motion in place of an answer without first
showing cause as to why an answer is inadequate.
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(3)

Petitioner may file a reply within 30 days from the date of service of the

answer.
(4)

This matter is referred to Magistrate Judge David K. Duncan pursuant to Rules

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72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a Report and

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Recommendation.

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DATED this 11th day of October, 2012.

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