                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 17, 2018

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                          No. 17-8010

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


                                           2
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.


                                             3
                                      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 Gatekeeping Requirements

      Under § 2255(h)(2), a second or successive habeas motion must be certified —

as provided in 28 U.S.C. § 2244 — by a court of appeals to contain a previously

unavailable new rule of constitutional law that the Supreme Court has made

retroactively applicable to cases on collateral review. Section 2255(h) does not

specify which aspects of § 2244’s certification process it incorporates, but we have

applied most of § 2244(b)(3)’s requirements to second or successive § 2255 motions.

See In re Clark, 837 F.3d 1080, 1083 & n.3 (10th Cir. 2016). This includes

§ 2244(b)(3)(C)’s provision that, to receive certification, a motion need only make a

prima facie showing that it satisfies § 2255’s criteria. United States v. Avila-Avila,

132 F.3d 1347, 1349 (10th Cir. 1997).

      A motion “contains” a new rule of constitutional law, as required by

§ 2255(h)(2), if the claim for which authorization is sought “relies on” the new rule.

In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016). Johnson announced a new

constitutional rule (that the ACCA’s residual clause is unconstitutionally vague) that

was made retroactively applicable to cases on collateral review. Welch v. United

States, 136 S. Ct. 1257, 1264–65 (2016). As Mr. Murphy’s § 2255 motion alleged


                                           4
that his ACCA sentence is no longer valid under Johnson, we concluded that Mr.

Murphy made the required prima facie showing to file a second or successive § 2255

motion in the district court. Cf. United States v. Snyder, 871 F.3d 1122, 1126 (10th

Cir. 2017) (ruling that, to be timely, “a § 2255 motion need only ‘invoke’ the newly

recognized right, regardless of whether or not the facts of record ultimately support

the movant’s claim”). Thus, Mr. Murphy’s motion passed through § 2255(h)’s “first

gate.” See Bennett v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997).

      The district court noted that our determination was preliminary and that,

pursuant to § 2244(b)(4), “[o]nce the court of appeals grants authorization, the

district court must determine whether the petition does, in fact, satisfy the

requirements for filing a second or successive motion before the merits of the motion

can be considered.” 1 R. 195. This is § 2255’s “second gate,” see Bennett, 119 F.3d

at 470, and the district court dismissed Mr. Murphy’s motion at this stage. We apply

a similar gatekeeping process in the context of second or successive § 2254

applications, see Case v. Hatch, 731 F.3d 1015, 1030 (10th Cir. 2013), but have not

ruled on its applicability to second or successive § 2255 motions. Our sister circuits

have agreed with the Seventh Circuit’s decision in Bennett v. United States, 119 F.3d

468 (7th Cir. 1997), and have ruled that § 2244(b)(4) applies to second or successive

§ 2255 motions. See Johnson v. United States, 720 F.3d 720, 720–21 (8th Cir. 2013);

United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003); Reyes-Requena v.

United States, 243 F.3d 893, 899 (5th Cir. 2001); United States v. Villa-Gonzalez,

208 F.3d 1160, 1164–65 (9th Cir. 2000). We follow suit and conclude that a second


                                            5
or successive § 2255 motion must pass through two gates before its merits can be

considered: (1) a prima facie showing to the court of appeals that the motion satisfies

the requirements of § 2255(h), defined as “a sufficient showing of possible merit to

warrant a fuller exploration by the district court,” Bennett, 119 F.3d at 469, and (2) a

determination by the district court that the petition does, in fact, satisfy those

requirements.1

B.     Mr. Murphy’s Johnson Claim

       We review the dismissal of a § 2255 motion de novo. Snyder, 871 F.3d at

1125. On review, Mr. Murphy’s motion does not satisfy the requirements for filing a

second or successive habeas motion. “[A] claim does not ‘rely’ on [Johnson] if it is

possible to conclude, using both the record before the sentencing court and the

relevant background legal environment at the time of sentencing, that the sentencing

court’s ACCA determination did not rest on the residual clause.” Id. at 1129 (second

alteration in original) (quoting United States v. Geozos, 870 F.3d 890, 896 (9th Cir.

2017)). Here, the record and relevant background legal environment at the time of




       1
         The Ninth Circuit has noted that “in the context of a [§] 2255 motion, the
phrase ‘the requirements of this section’ in [§] 2244(b)(4) refers to the requirements
set out in [§] 2255, not [§] 2244(b)(2).” Villa-Gonzalez, 208 F.3d at 1164 n.4. As
“contains” means “relies on,” In re Encinias, 821 F.3d at 1225 n.2, the requirements
of §§ 2255(h)(2) and 2244(b)(2)(A) appear to be identical. This is not true for
§§ 2255(h)(1) and 2244(b)(2)(B), which contain “crucial differences.” In re Clark,
837 F.3d at 1083 n.3. Here, the parties did not brief the issue of which section “this
section” refers to, addressing it only at oral argument. As it does not affect the
outcome of Mr. Murphy’s appeal, we need not decide the issue today. See In re
Home & Family, Inc., 85 F.3d 478, 481 (10th Cir. 1996).

                                             6
sentencing demonstrate that Mr. Murphy was sentenced under the enumerated

offense clause.

      Burglary is one of the offenses enumerated in § 924(e)(2)(B)(ii), and Mr.

Murphy’s PSR noted that he had been convicted of three prior burglary offenses.

The PSR even specified that Mr. Murphy’s burglary convictions fell within the

meaning of “burglary” for the purposes of the ACCA enhancement, citing Taylor.

And at the sentencing hearing, all parties agreed that Mr. Murphy’s previous

convictions matched Taylor’s definition of burglary. Additionally, the phrase

“residual clause” was not mentioned at all in the PSR or during sentencing, which

suggests that the sentencing court did not rely on it. See Snyder, 871 F.3d at 1128.

Altogether, the record establishes that Mr. Murphy was sentenced under the

enumerated offense clause.

      Furthermore, given how courts applied Taylor at the time of Mr. Murphy’s

sentencing, there would have been no need to rely on the residual clause. See id. at

1129–30, 1129 n.4 (noting that, prior to Mathis v. United States, 136 S. Ct. 2243

(2016), “it would have been permissible for the district court to examine the

underlying charging documents and/or jury instructions to determine if [the

defendant] was charged only with burglary of buildings”). Here, his indictments

reveal that in each of his previous convictions, Mr. Murphy was charged with

unlawful entry into a building (and not, say, a vehicle) with intent to commit a crime,

which matches the elements of generic burglary. See Taylor, 495 U.S. at 599. In

light of the relevant background legal environment, then, Mr. Murphy’s burglary


                                           7
convictions would have fallen within the scope of the ACCA’s enumerated offense

clause. See Snyder, 871 F.3d at 1129. Because the record and relevant background

legal environment demonstrate that the sentencing court’s ACCA determination did

not rest on the residual clause, Mr. Murphy’s habeas claim does not rely on Johnson

and therefore does not contain a previously unavailable new rule of constitutional

law.

       Mr. Murphy argues that his continued incarceration violates due process

because he is no longer statutorily eligible for his sentence, but Mr. Murphy’s motion

contains no previously unavailable new rule of constitutional law that would

invalidate his sentence under the enumerated offense clause. Essentially, Mr.

Murphy raises a poorly disguised Taylor claim rather than a true Johnson claim. See

id. at 1130. This claim was not previously unavailable; in fact, Mr. Murphy

(unsuccessfully) argued in his first § 2255 motion that his previous convictions were

not violent felonies under Taylor. Accordingly, the district court correctly dismissed

his second § 2255 motion.

       AFFIRMED.




                                          8
