United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge.
this court is Defendant James Murphy's pro se
motion (Doc. 221) to correct a clerical error pursuant to
Federal Rule of Criminal Procedure 36 (“Rule
36”). Murphy also moves pro se to compel his
presence and appoint counsel at any hearing on his motion to
correct a clerical error. (Doc. 223). Finally, Murphy filed a
pro se motion to proceed in forma pauperis
(IFP). (Doc. 224). For the reasons that follow,
we will deny Murphy's Rule 36 motion to correct a
clerical error, and will dismiss as moot his motions to
compel his production, to appoint counsel, and to proceed
December 10, 2008, Murphy was indicted on one count of
engaging in a conspiracy to distribute and possess with
intent to distribute heroin and 50 grams or more of cocaine
base (Count I), and one count of distribution and possession
with intent to distribute heroin and 50 grams or more of
cocaine base (Count II), all in violation of 21 U.S.C.
§§ 841 and 846. (Doc. 1). The indictment specified
that the criminal conduct for each charge started in November
2007, and, for Count I, continued to July 23, 2008, and, for
Count II, continued to “on or after July 2008.”
(Id.) In July 2009, following a two-day jury trial,
Murphy was found guilty on both Counts in the Indictment.
(Doc. 63). On June 22, 2010, this court sentenced Murphy to
360 months' imprisonment. (Doc. 119). On June 23, 2010,
Murphy's judgment of conviction was entered, which listed
that Count I's “offense ended” on July 23,
2008, and Count II's “offense ended” on July
31, 2008. (Doc. 120). Murphy's conviction and sentence
were affirmed on direct appeal by the Third Circuit Court of
Appeals. United States v. Murphy, 460 F. App'x
122, 126 (3d Cir. 2012).
February 13, 2013, Murphy filed an initial motion to vacate
his conviction and sentence pursuant to 28 U.S.C. §
2255. (Doc. 164). On July 11, 2013, we denied that motion.
(Doc. 184 & 185). On June 23, 2016, Murphy filed a second
§ 2255 motion, seeking modification of his sentence in
light the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (June 26,
2015). (Doc. 209). On June 27, 2016, we stayed that motion
until the Third Circuit authorized Murphy's filing of a
second or successive § 2255 motion. (Doc. 214). On
February 9, 2017, Murphy filed a third § 2255 motion.
(Doc. 219 at 4). On March 10, 2017, we denied that motion
because Murphy had not sought authorization from the Third
Circuit to file the motion. (Doc. 220).
April 24, 2017, Murphy filed the instant pro se
motions in this court. First, Murphy moves to correct or
clarify an alleged clerical error or mistake in his judgment
of conviction pursuant to Rule 36. (Doc. 221). In that
motion, Murphy alleges a discrepancy between his Indictment
and judgment of conviction on Count II, noting that the
Indictment lists the offense as “continuing to on or
after July 2008, ” but that his judgment of conviction
lists that the “offense ended” on July 31, 2008.
(Doc. 222 at 3). Murphy argues that these different dates
constitute a clerical error in his judgment of conviction
because “the description of the distribution date of
[July 31, 2008] was not charged” in the Indictment.
(Id.) Murphy requests a hearing to correct his
judgment of conviction and to resentence him. (Id.)
Second, should we grant his motion to correct the alleged
clerical error and hold a hearing, Murphy moves to be
produced and present for such a hearing and to have counsel
appointed. (Doc. 223 at 1-2). Finally, Murphy moves to
proceed IFP. (Doc. 224).
provides that “[a]fter giving any notice it considers
appropriate, the court may at any time correct a clerical
error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or
omission.” Fed. R. Crim. P. 36. “A court's
authority under Rule 36 is limited to the correction of
clerical errors in the judgment.” United
States v. Bennett, 423 F.3d 271, 277 (3d Cir. 2005).
“A clerical error involves a failure to accurately
record a statement or action by the court or one of the
parties.” Id. at 277-78. “Rule 36 is
normally used to correct a written judgment of sentence to
conform to the oral sentence pronounced by the judge.”
Id. at 278. “Rule 36 provides no basis to
correct substantive errors in the sentence.”
we perceive no error, clerical or otherwise, that
necessitates correction or clarification in Murphy's
judgment of conviction. Murphy misinterprets the
“offense ended” date in the judgment of
conviction (Doc. 120) as being a “distribution
date” regarding Count II's drug possession and
distribution offense, (Doc. 222 at 3). Count II of the
Indictment alleged a continuing, ongoing offense of
distribution and possession with intent to distribute heroin
and cocaine base from “on or before November
2007” to “on or after July 2008.” (Doc. 1).
In accord with that language, Murphy's judgment of
conviction listed a more precise date that the “offense
ended” on July 31, 2008. (Doc. 120). We do not perceive
any discrepancy warranting relief under Rule 36.
even assuming a discrepancy exists between the Indictment and
judgment of conviction, Murphy does not state how any such
discrepancy prejudices him, does not posit any alternate-or
more accurate-date on which the offense in Count II ended,
and does not allege the error to be clerical in nature. He
does not, for instance, point to a discrepancy between the
judgment of conviction and the oral sentence that this court
imposed. As such, we find that the “alleged error here
does not involve a failure to accurately record an action or
statement by the District Court.” United States v.
Rhines, 594 F. App'x 64, 65 (3d Cir.), cert.
denied, 136 S.Ct. 195 (2015) (citing Bennett,
423 F.3d at 277-78) (affirming district court's denial of
Rule 36 motion where defendant serving life sentence alleged
error regarding “date the offense concluded” in
his judgment of conviction). Accordingly, we find that no
clerical error exists that warrants correction under Rule 36.
We will therefore deny Murphy's motion to correct a
no clerical error exists in Murphy's judgment of
conviction, we will deny his Rule 36 motion (Doc. 221) to
correct a clerical error. We will dismiss as moot his motion
(Doc. 223) to compel his presence and appoint counsel at a
hearing on his Rule 36 ...