0'Murchu V. USA CV-93-030-B 05/13/93

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Noel O'Murchu

v. Civil No. 93-030-B

United States of America

O R D E R

Noel O'Murchu appeals from the Magistrate Judge's Report and

Recommendation denying his petition for writ of habeas corpus.

For reasons discussed below, the court adopts the Magistrate

Judge's recommendation and dismisses O'Murchu's petition.

I. BACKGROUND

On November 2 6, 198 6, O'Murchu was convicted in the United

States District Court for the District of Massachusetts of

conspiracy to export arms without a license, conspiracy to

violate domestic firearms laws, and unlawful dealing in firearms.

The First Circuit Court of Appeals affirmed his conviction, see

United States v. Murphy,

(1st Cir. 1988), cert.

denied,

(1989), and subseguently denied his

petition for rehearing. After unsuccessfully seeking certiorari from the United States Supreme Court, O'Murchu filed a motion

under

to vacate his conviction and sentence.

See Murchu v. United States,

(1st Cir.), cert.

denied, 112 S. C t . 99 (1991). In his motion, O'Murchu alleged,

among other things, that the government's use of its peremptory

challenges to remove four prospective jurors with Irish surnames

violated his Fourteenth Amendment right to egual protection of

the law under Batson v. Kentucky,

(1986) . The First

Circuit held that because O'Murchu neither alleged nor suggested

that Irish Americans, as a group, are singled out for

discrimination, he failed to state a Batson claim. See Murchu,

92 6 F .2d at 55.

Six years later, while incarcerated at a federal detention

center in Oakdale, Louisiana, O'Murchu filed a petition for

habeas corpus under

in the United States

District Court for the Western District of Louisiana in which he

stated:

Petitioner, wishes to raise one ground and one ground only. The petit jury which convicted the petitioner was unconstitutionally selected and impaneled.

The prosecutor removed via discriminatory peremptory challenges Americans of Irish ancestry from the petit jury in violation of Batson v. Kentucky Petitioner presented a prima facie case of purposeful discrimination in the selection of his petit jury. The trial judge failed to hold a Batson hearing and hence failed to reguire the prosecutor to articulate race- neutral reasons for his strikes.

Petition for Habeas Corpus at 5.

Four months after filing his petition, on April 10, 1992,

O'Murchu completed his sentence but was subseguently taken into

custody by the United States Immigration and Naturalization

Service ("INS") and transported to Manchester, New Hampshire.1

Nine months later, on January 19, 1993, the district court in

Louisiana (Timbers, J.) held that since O'Murchu's petition

"challenges First Circuit law," it "would be better heard by a

Court in the First Circuit." The court then ordered the case

"transferred to the United States District Court, District of New

Hampshire."

On January 27, 1993, United States Magistrate Judge William

H. Barry, Jr., issued a Report and Recommendation denying

O'Murchu's petition for habeas corpus. The Magistrate Judge

found that the issue on which O'Murchu "is now seeking a writ of

1For a more detailed discussion of O'Murchu's current custody status, see Noel O'Murchu a/k/a Noel Murphy v. William P. Barr, et a l ., No. C-92-550-L (D.N.H. Nov. 19, 1992) (Loughlin, J. )

3 habeas corpus is identical to those issues previously set forth

by the petitioner and fully determined by the First Circuit."

The Magistrate Judge also noted that since O'Murchu was attacking

his underlying conviction, and since his sentence had expired

during the course of these proceedings, his petition was moot.

II. DISCUSSION

O'Murchu objects to the Magistrate Judge's Report and

Recommendation because he contends that only the Western District

of Louisiana has jurisdiction to consider his habeas corpus

petition. He also challenges the Magistrate Judge's conclusion

that he is not entitled to habeas corpus relief because the issue

he raises was already considered and found to be without merit

when his sentencing court denied the motion for new trial he

filed pursuant to

. The court finds neither

argument persuasive.

A. Exclusive Jurisdiction

This court has no authority to review the propriety of a

transfer order issued by another district court. Nevertheless,

the court must independently determine whether it has

jurisdiction to consider O'Murchu's claims. While O'Murchu may

be correct that Western District of Louisiana did not lose

4 jurisdiction over his habeas corpus petition simply because he

was transferred to a different district after the petition was

filed, see, e.g., Ahrens v. Clark,

(1948)

(transfer after habeas corpus petition was filed does not defeat

jurisdiction of court where petition was filed); Miller v.

Hambrick,

(9th Cir. 1990); Santillanes v.

United States Parole Comm'n,

(10th Cir. 1985),

jurisdiction also exists in any other district where the detained

person's custodian resides.2 See Braden, 410 U.S. at 496 (1973);

United States v. DiRusso,

(1st Cir. 1976).

Since O'Murchu is detained in New Hampshire under the control of

a custodian residing in this district, this court has

jurisdiction to accept the transfer order from the Western

District of Louisiana.

20'Murchu is not in a position to challenge jurisdiction on this point since he has previously filed a habeas corpus petition in this district in which he acknowledges that the court has jurisdiction to consider his claims because he is being held in New Hampshire. 0'Murchu, No. C-92-550-L (D.N.H. Nov. 19, 1992) (Loughlin, J .)

U.S.C. S 2255

Section 2255 of Title 28 limits a petitioner's right to

apply for habeas corpus relief in certain cases. If a petitioner

is authorized to file a section 2255 motion and the court with

jurisdiction to consider that motion denies his request for

relief, he may not thereafter apply for the same relief in a

habeas corpus petition unless "it also appears that the [section

2255] remedy . . . is inadequate or ineffective to test the

legality of his detention."

.

O'Murchu concedes that the First Circuit Court of Appeals

has already upheld the District Court's denial of his section

2255 motion raising the same issue he raises here. Nevertheless,

he argues that his section 2255 motion was an "inadequate or

ineffective" means to test the legality of his detention because

the First Circuit case law is less helpful to his cause than the

law followed in several other circuits. However, a section 2255

motion cannot be considered inadequate or ineffective merely

because the circuit law is unfavorable. Cain v. Markley,

(7th Cir. 1965) (section 2255 is not an inadequate

or ineffective remedy even though law to be applied by habeas

corpus court might entitle petitioner to relief whereas law

applied by section 2255 court would not); Application of Galante,

6

(3rd Cir. 1971); see also McGhee v. Hanberrv,

(5th Cir. 1979); 3 Charles A. Wright, Federal

Practice & Procedure § 591, at 427 (1982) ("[t]he court for the

district in which the prisoner is confined cannot be permitted to

second guess the sentencing court, and the court of appeals to

which it is responsible").

If the court that convicted and sentenced O'Murchu and the

Court of Appeals that upheld his conviction and later determined

that his section 2255 motion was without merit were wrong in

their judgments, O'Murchu's only remedy was with the United

States Supreme Court. A district court in the district where he

is confined simply has no authority in ruling on a petition for

habeas corpus to overturn the decision of the First Circuit Court

of Appeals on his section 2255 motion. Thus, even if O'Murchu's

petition had not been transferred from the Western District of

Louisiana to a district court in the First Circuit, his petition

would have to be denied.3

3The court notes that it would be futile to transfer O'Murchu's current petition to the district court where he was convicted and sentenced so that his petition could be considered as another section 2255 motion. If O'Murchu has a basis to convince the Court of Appeals to reconsider its denial of his original section 2255 motion, he is free to make his argument to the Court of Appeals in his appeal from this order.

7 III. CONCLUSION

O'Murchu's Petition for Writ of Habeas Corpus is dismissed.

SO ORDERED.

Paul Barbadoro United States District Judge

May 13, 1993

cc: Noel O'Murchu, pro se United States Attorney

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