United States District Court, D. Minnesota
M. Hollenhorst, UNITED STATES ATTORNEY'S OFFICE, for
Carl Pape, defendant, pro se.
PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant John Carl Pape's
“second-in-time” motion under 28 U.S.C. §
2255 to “reverse and remand his conviction and . . .
resentence him without the improper Armed Career Criminal
enhancement.” ECF No. 67-1 at 1, 4. Pape's motion
is both unauthorized and untimely, and thus the Court
pleaded guilty to possessing a firearm as a felon. At his
sentencing hearing on July 18, 2013, the Court determined
that Pape was subject to a 15-year mandatory-minimum sentence
under the Armed Career Criminal Act (“ACCA”)
because he had accrued at least “three previous
convictions . . . for a violent felony.” 18 U.S.C.
§ 924(e)(1). Specifically, the Court found that each of
Pape's 12 prior burglary convictions-three for
second-degree burglary and nine for third-degree burglary-was
a predicate offense under the ACCA. The Court imposed the
15-year mandatory-minimum sentence. ECF No. 47. Pape did not
file a timely appeal,  and thus his sentence became final 14 days
later, on August 1, 2013. Compare Anjulo-Lopez v. United
States, 541 F.3d 814, 816 n.2 (8th Cir. 2008) (noting
that a sentence becomes final when the time period for filing
a notice of appeal expires), with Fed. R. App. P.
4(b)(1)(A)(i) (giving a criminal defendant 14 days to appeal
years later, Pape moved to vacate his sentence under 28
U.S.C. § 2255, arguing that the Court had erred in
treating his burglary convictions as violent felonies under
the ACCA. See ECF Nos. 52-54, 60-61, 63-64. The
Court disagreed and denied Pape's motion. ECF No. 65.
months later, Pape filed this motion. ECF No. 67.
present motion must be rejected for two reasons. First,
Pape's motion is a second or successive motion under
§ 2255, and he failed to obtain the required
authorization from the Eighth Circuit. See 28 U.S.C.
§ 2255(h). Second, Pape's motion is untimely.
Pape Failed To Seek Certification Under 28 U.S.C. §
threshold matter, the Court must decide whether to construe
Pape's motion as a motion under § 2255 or instead as
a motion under Fed.R.Civ.P. 60(b). This distinction is
important. As noted, Pape already filed a § 2255 motion,
ECF Nos. 52, 60, and that motion was denied by this Court on
July 29, 2016, ECF Nos. 65, 66. If Pape's pending motion
is in substance a second or successive motion under §
2255-even if it is labeled as something else-then Pape was
required to received authorization from the Eighth Circuit
before filing the motion. See 28 U.S.C. §
60(b) motion is treated as a second or successive § 2255
motion when the motion disputes a court's prior denial of
a § 2255 motion “‘on the
merits.'” United States v. Lee, 792
F.3d 1021, 1023 (8th Cir. 2015) (quoting Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005)). But a Rule 60(b)
motion is not treated as second or successive § 2255
motion “if it does not raise a merits challenge to the
resolution of a claim in a prior habeas proceeding, but
instead attacks ‘some defect in the integrity of the
federal habeas proceedings.'” Id. (quoting
Gonzalez, 545 U.S. at 532).
motion is a second § 2255 motion in both form and
substance. Pape himself labels it as a “second-in-time
motion under 28 U.S.C. § 2255.” ECF No. 67. And
Pape's motion “raise[s] a merits challenge to the
resolution of a claim in a prior habeas proceeding.”
Lee, 792 F.3d at 1023. For the most part, Pape's
motion simply repeats arguments that the Court rejected on
the merits when it denied Pape's first § 2255
motion. Cf. ECF Nos. ...