Murphy v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA -v- No. 18-cr-373-11 (RJS) ERNEST MURPHY, Defendant. ERNEST MURPHY, Petitioner, No. 23-cv-1937 (RJS) -v- ORDER UNITED STATES OF AMERICA, Respondent. RICHARD J. SULLIVAN, Circuit Judge: Pending before the Court is Ernest Murphy’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (See No. 18-cr-373-11, Doc. No. 965; No. 23-cv-1937, Doc. No. 6.) On June 26, 2023, the Court stayed Murphy’s section 2255 proceedings pending the Second Circuit’s resolution of his appeal from this Court’s order denying his motion under Rule 33 of the Federal Rules of Criminal Procedure. (See No. 18-cr-373-11, Doc. No. 979). The Second Circuit affirmed the denial of Murphy’s Rule 33 motion on July 2, 2024, (see No. 18-cr-373-11, Doc. No. 1085), the mandate was issued on December 16, 2024, (see id.), and the Supreme Court denied Murphy’s petition for certiorari on March 10, 2025 (see No. 18-cr-373-11, Doc. No. 1093). Murphy now moves to lift the stay on the section 2255 proceedings and for leave to amend his section 2255 motion following the revelation of “[p]reviously unknown information . . . during the Rule 33 proceedings.” (See id.) The request is GRANTED. IT IS HEREBY ORDERED THAT Murphy shall submit an amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 along with his opening brief by August 29, 2025. The government shall respond by September 29, 2025. Murphy shall file his reply, if any, by October 29, 2025. Moreover, to the extent Murphy seeks discovery and expansion of the record under Rules 6 and 7 of the Rules Governing Section 2255 Proceedings (see No. 18-cr-373-11, Doc. Nos. 1097, 1096), those requests are denied without prejudice to renewal. Such requests are generally not made until a movant has filed his section 2255 motion. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“Before addressing whether petitioner is entitled to discovery under [Rule 6]... , we must first identify the essential elements of [the] claim.” (emphasis added and internal quotation marks omitted)); United States v. Alaga, 99 F.3d 400 (2d Cir. 1995) (unpublished table decision) (upholding a district court’s denial of a section 2255 petitioner’s discovery request when the petitioner filed his request before filing a section 2255 petition); see also Rules Governing Section 2255 Proceedings, Rule 7 (providing that “[i]f the motion is not dismissed, the judge may direct the parties to expand the record”). Because Murphy is amending his section 2255 motion, he should make his requests for discovery and expansion of the record at the same time he submits his amended section 2255 motion and explain why the Court should grant such requests in light of the arguments made in his amended section 2255 motion. The Clerk of Court is respectfully directed to mail a copy of this order to Murphy and to terminate the motions currently pending at document numbers 965, 1093, 1096, and 1097. SO ORDERED. Dated: July 15, 2025 New York, New York RICHARD J. SULLIVAN UNITED STATES CIRCUIT JUDGE Sitting by Designation