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United States v. Murphy

United States Court of Appeals, Tenth Circuit

April 17, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHN PARKER MURPHY, Defendant-Appellant.

          Appeal from the United States District Court for the District of Wyoming (D.C. Nos. 2:16-CV-00084-SWS and 1:08-CR-00081-CAB-1)

          Meredith B. Esser, Assistant Federal Public Defender (and Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

          Jason M. Conder, Assistant United States Attorney (and John R. Green, Acting United States Attorney, with him on the briefs), Lander, Wyoming, for Plaintiff-Appellee.

          Before MATHESON, KELLY, and BACHARACH, Circuit Judges.

          KELLY, Circuit Judge.

         Defendant-Appellant John Parker Murphy appeals from the district court's dismissal of his second motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On appeal, Mr. Murphy argues that his sentence should be vacated in light of Johnson v. United States, 135 S.Ct. 2551 (2015). We have jurisdiction under 28 U.S.C. §§ 1291 and 2255(d), and we affirm because Mr. Murphy was sentenced under the ACCA's enumerated offense clause rather than its residual clause.

         Background

         In 2008, Mr. Murphy pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 15 years' imprisonment and 5 years' supervised release. Under 18 U.S.C. § 924(a)(2), being a felon in possession of a firearm is ordinarily punishable by a maximum of 10 years' imprisonment. Pursuant to the Armed Career Criminal Act (ACCA), though, Mr. Murphy received a sentencing enhancement under § 924(e)(1), which provides for a minimum of 15 years' imprisonment, because he had three previous convictions for violent felonies. Specifically, the Presentence Investigation Report (PSR) advised that Mr. Murphy's previous convictions for burglary (two in Oregon and one in Wyoming) were "burglaries" within the meaning of § 924(e), as defined by Taylor v. United States, 495 U.S. 575 (1990). Mr. Murphy did not object to the PSR, and the government and Mr. Murphy agreed at his sentencing hearing that he was eligible for the ACCA enhancement because his previous convictions matched Taylor's definition of burglary. He did not appeal from his conviction or sentence.

         In 2009, Mr. Murphy filed his first § 2255 motion, alleging that his counsel provided ineffective assistance by not objecting to the classification of his burglary convictions as violent felonies. Mr. Murphy argued that he would not have received the ACCA enhancement had his counsel objected and urged the sentencing court to apply the categorical approach outlined in Taylor to determine if his previous convictions matched the generic definition of burglary. The district court denied his motion on the grounds that his previous convictions matched Taylor's definition of burglary because in all three, "he made an unlawful or unprivileged entry into a building or structure, with the intent to commit a crime therein." 2 R. 29. Mr. Murphy did not appeal from the district court's denial of his motion.

         In 2016, after Johnson invalidated the ACCA's residual clause, we authorized Mr. Murphy to file a second § 2255 motion. Mr. Murphy's argument that his sentence should be vacated is as follows: (1) the state statutes for his previous convictions are broader than the generic definition of burglary, therefore he could not have been sentenced under the ACCA's enumerated offense clause; (2) if he was not sentenced under the enumerated offense clause, he must have been sentenced under the residual clause; (3) Johnson invalidated the residual clause, therefore his sentence should be vacated.

         The district court found that Mr. Murphy's argument failed at the first step because "the record is clear that Murphy's ACCA enhancement was based upon the enumerated offenses clause - not the residual clause." 1 R. 197. As Johnson invalidated only the residual clause of the ACCA, the district court reasoned that Mr. Murphy "cannot use Johnson as a basis for filing a second petition" and that he therefore "failed to satisfy § 2255(h)'s criteria for filing a second or successive motion." Id. at 198. It consequently dismissed Mr. Murphy's motion but granted a certificate of appealability on the issue.

          Discussion

         This appeal raises two issues: (1) the gatekeeping requirements that a second or successive habeas motion must meet before its merits can be considered and (2) whether Mr. Murphy's motion meets those requirements.

         A. Section 2255(h)'s ...


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