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7th Circuit affirms denial of habeus corpus petition

December 27, 2018

A prisoner petitioning for habeus corpus relief for the past decade was again denied when the 7th Circuit Court of Appeals found he was properly sentenced under the Armed Career Criminal Act.  

After marijuana and a gun were found in his car after a traffic stop, Joshua Shepherd was convicted of possession of marijuana with intent to distribute, as a felon in possession of a firearm and two counts of criminal forfeiture. An enhancement was added under the Armed Career Criminal Act based on his three prior convictions for second-degree burglary, and Shepherd was sentenced to 15 years imprisonment.

Shepherd continually challenged his enhanced sentence under ACCA over the next 10 years, and his appeals were similarly denied and dismissed by the Kentucky district court, Sixth Circuit Court of Appeals and the Indiana Southern District Court.

The 7th Circuit Court of Appeals likewise denied his petition on appeal, finding that a Kentucky conviction for second-degree burglary fell within the scope of a burglary conviction under ACCA. Kentucky law states that “A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.”

“Kentucky’s second-degree burglary statute’s use of the term ‘dwelling’ means it applies to buildings generally, within the meaning of generic burglary under ACCA, and not to vehicles, watercraft, and the like, which would expand the state offense beyond the scope of generic burglary for purposes of ACCA,” Circuit Judge David F. Hamilton wrote for the panel.

“We agree with the reasoning of our colleagues in the Sixth Circuit,” Hamilton wrote. “Even if Shepherd could overcome all of the procedural obstacles to his petition, he was properly sentenced under the Armed Career Criminal Act.”

The panel thus affirmed the district court’s denial of Shepherd’s petition in Joshua Shepherd v. Stephen Julian, 17-1362.

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