Murphy v. USA

Filing 4

ORDER denying 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 97-CR-1002-LRR); denying 2 Pro Se Motion to Hold Petitioner's Pro Se 2255 Motion in Abeyance. A certificate of appealability will not issue. Signed by Judge Linda R Reade on 9/29/2017 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

DENNIS PATRICK MURPHY,
Movant,

No. C16-1007-LRR
No. CR97-1002-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on the movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1), filed on March 18,
2016, and motion to hold action in abeyance (civil docket no. 2), filed on May 27, 2016.
The court considered the record and the law, which includes but is not limited to
the following: Beckles v. United States, ___, U.S. ___, ___ S. Ct. ___, 2017 WL 855781,
at *6 (Mar. 6, 2017) (concluding that the United States Sentencing Guidelines are not
subject to a void for vagueness challenge under the Fifth Amendment Due Process Clause
and holding that “[t]he residual clause in [§4B1.2(a)(2)] therefore is not void for
vagueness”); United States v. Frady, 456 U.S. 152, 165 (1982) (stating that “a collateral
challenge may not do service for an appeal”); United States v. Brown, No. 16-7056 , 2017
U.S. Dist. LEXIS 132848, 2017 WL 3585073, at *3 (4th Cir. Aug. 21, 2017) (concluding
that first § 2255 motion that sought to apply Johnson to the pre-Booker guidelines was
outside the statute of limitation); Raybon v. United States, No. 16-2522, 2017 U.S. App.
LEXIS 15029, 2017 WL 3470389, at *2-3 (6th Cir. Aug. 14, 2017) (concluding that
movant could not rely on statute of limitation as set forth in 28 U.S.C. § 2255(f)(3)
because Johnson did not recognize a new “Constitutional right not to be sentenced as a

career offender under the residual clause of the mandatory Sentencing Guidelines”); United
States v. Benedict, 855 F.3d 880, 888-89 (8th Cir. 2017) (holding that prior convictions
qualified under the residual clause of USSG §4B1.2(a)(2) (2014)); In re Sams, 830 F.3d
1234, 1240 (11th Cir. 2016) (reiterating that mandatory sentencing guidelines are not
subject to vagueness challenges and “Welch did not make Johnson retroactive for purposes
of a successive § 2255 motion based on the Guidelines”); In re Sapp, 827 F.3d 1334, 1336
(11th Cir. 2016) (holding that the criteria for filing a successive § 2255 motion had not
been met because Welch does not make Johnson retroactive for purposes of challenging
the sentencing guidelines and mandatory sentencing guidelines cannot be unconstitutionally
vague); Donnell v. United States, 826 F.3d 1014, 1017 (8th Cir. 2016) (refusing to create
“a second rule that would apply Johnson and the constitutional vagueness doctrine to a
provision of the advisory sentencing guidelines”); In re Griffin, 823 F.3d 1350, 1354-55
(11th Cir. 2016) (explaining that sentencing guidelines, whether mandatory or advisory,
only limit a judge’s discretion and do not violate a defendant’s right to due process by
reason of being vague); Richardson v. United States, 623 F. App’x 841, 842-43 (8th Cir.
2015) (denying authorization to file a successive motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255 with respect to movant’s challenge to his sentencing
guidelines calculations because any extension of the rule in Johnson is not a new
substantive rule under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989)); United
States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015) (concluding that advisory
sentencing guidelines, such as USSG §4B1.2(a)(2), cannot be unconstitutionally vague);
Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (explaining that,
although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for “all
claimed errors in conviction and sentencing.” (quoting United States v. Addonizio, 442
U.S. 178, 185 (1979))); Never Misses a Shot v. United States, 413 F.3d 781, 783 (8th Cir.
2005) (holding that “the ‘new rule’ announced in Booker does not apply to criminal
convictions that became final before the rule was announced, and thus does not benefit
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movants in collateral proceedings”); United States v. Wivell, 893 F.2d 156, 159-60 (8th
Cir. 1990) (holding that Guidelines provisions are “not susceptible to” constitutional
vagueness challenges). Having done so, the court concludes that, despite being sentenced
pre-Booker, the movant’s motion is time-barred because it does not assert a right “newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3).
Therefore, the movant’s motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255 (civil docket no. 1) and motion to hold action in abeyance (civil docket
no. 2) are denied. As for a certificate of appealability, the movant has not made the
requisite showing. See 28 U.S.C. § 2253(c)(2). Accordingly, a certificate of appealability
under 28 U.S.C. § 2253 will not issue.
IT IS SO ORDERED.
DATED this 29th day of September, 2017.

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