     04-0477-cv
     United States v. Murphy


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
     32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
     PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
     THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
     COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
 1
 2        At a Stated Term of the United States Court of Appeals for
 3   the Second Circuit, held at the Daniel Patrick Moynihan United
 4   States Courthouse, 500 Pearl Street, in the City of New York, on
 5   the 24th day of May, two thousand eleven.
 6
 7   PRESENT:
 8
 9             DENNIS JACOBS,
10             ROSEMARY S. POOLER,
11                       Circuit Judges,
12             JOHN G. KOELTL,*
13                       District Judge.
14   ______________________________________
15
16   UNITED STATES,
17                             Appellee,
18
19               -v.-                              Nos. 04-0477-cr(Lead)
20                                                      05-2502-cr (Con)
21   ANTHONY MURPHY,                                    05-2843-cr (Con)
22                             Defendant-Appellant.
23
24   ____________________________________
25
26   For Appellee:                               FRANK H. SHERMAN, Assistant
27                                               United States Attorney, for
28                                               William J. Hochul, Jr., United
29                                               States Attorney for the Western
30                                               District of New York.


           *
            The Honorable John G. Koeltl, United States District Judge
     for the Southern District of New York, sitting by designation.

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 1
 2   For Defendant-Appellant:               ANTHONY MURPHY, pro se.
 3
 4
 5
 6   UPON DUE CONSIDERATION of the motion to recall the mandate issued
 7   on January 29, 2007, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
 8   that the motion is DENIED.
 9
10
11
12        Defendant Anthony Murphy moves to recall the mandate of this

13   Court affirming his conviction and to reconsider our summary

14   order explaining that affirmance.      See United States v. Bliss,

15   188 Fed. App’x 13, 16 (2d Cir. July 11, 2006) (summary order).

16   Murphy argues that our summary order was based on the erroneous

17   belief that Murphy had not moved for severance from his co-

18   defendants and that his prosecution was barred under the Speedy

19   Trial Act, 18 U.S.C. § 3162.    Murphy previously filed a petition

20   for rehearing on November 6, 2006, raising the same arguments,

21   which was denied.   In his current motion, he also argues that

22   some of the Speedy Trial Act exclusions in his case were

23   erroneous under the Supreme Court’s recent decision in Bloate v.

24   United States, 130 S. Ct. 1345 (2010).      We assume the parties'

25   familiarity with the facts, procedural context, and issues on

26   this motion.

27        Although the courts of appeals "have an inherent power to

28   recall their mandates," that power "can be exercised only in

29   extraordinary circumstances."   Calderon v. Thompson, 523 U.S.

30   538, 548-50 (1998); see also Bottone v. United States, 350 F.3d



                                      -2-
 1   59, 62 (2d Cir. 2003).

 2        In support of his current motion to recall the mandate,

 3   Murphy asserts that his trial counsel orally joined his co-

 4   defendant's motion to sever defendants, and that the trial judge

 5   granted that application to join the motion to sever.   A review

 6   of the transcript from the trial proceedings confirms this claim.

 7   But until the reply brief filed in support of this latest motion,

 8   Murphy had not directed the Court to this oral application and

 9   indeed had relied in his motion on an inapposite motion to sever

10   counts, not parties.

11        However, the statement in the summary order that Murphy had

12   not moved for a severance is immaterial to the Court's rejection

13   of Murphy's Speedy Trial Act claim.   So long as a defendant is

14   "brought to trial within the seventy speedy trial days that began

15   with the clock of the most recently added defendant and so long

16   as any delay is 'reasonable,' the Speedy Trial Act is not

17   violated."   United States v. Piteo, 726 F.2d 50, 52 (2d Cir.

18   1983).   The trial judge found any delay reasonable, and there is

19   no basis for holding this finding mistaken.   Moreover, properly

20   calculated, the speedy trial clock had not expired even if

21   calculated from the time of Murphy's initial indictment, as the

22   Court stated in the original summary order.   Accordingly, the

23   defendant has not shown "extraordinary circumstances" justifying

24   recall of the mandate.


                                     -3-
 1        Murphy also argues that some of the Speedy Trial Act

 2   exclusions were improper under Bloate.     However, this argument is

 3   not a basis to recall the mandate.     "[W]hen a defendant moves to

 4   recall the mandate based on intervening precedent that calls into

 5   question the merits of the decision affirming his conviction, we

 6   construe the motion as one to vacate the defendant's sentence

 7   pursuant to 28 U.S.C. § 2255."   United States v. Fabian, 555 F.3d

 8   66, 68 (2d Cir. 2009).    Murphy already has a § 2255 motion

 9   pending in the District Court for the Western District of New

10   York, which has stayed consideration of that motion pending the

11   resolution of this one.   This motion is thus a second or

12   successive motion, and cannot be considered unless "it is based

13   on newly discovered evidence or a new rule of constitutional law

14   made retroactive by the Supreme Court."    Id.; see also 28 U.S.C.

15   § 2255(h).   Murphy's claim that Bloate renders some of the

16   exclusions in his case improper is not based on newly discovered

17   evidence and Bloate is a ruling of statutory, not constitutional,

18   interpretation.   Therefore, Murphy’s claim is not a basis for

19   recalling the mandate.    See Fabian, 555 F.3d at 68.   We note that

20   Murphy has already raised Bloate in his pending § 2255 motion,

21   and any consideration of that argument must occur in that case,

22   rather than in a motion to recall the mandate.




                                      -4-
1        We have examined the remainder of Murphy’s arguments and we

2   find them to be without merit.   For the foregoing reasons, the

3   motion to recall the mandate is DENIED.

4
5
6                       FOR THE COURT:
7                       Catherine O’Hagan Wolfe, Clerk of the Court
8
9




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