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United States v. Pape

United States District Court, D. Minnesota

January 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN CARL PAPE, Defendant.

          Thomas M. Hollenhorst, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          John Carl Pape, defendant, pro se.

          ORDER

          PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE

         This 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 dismisses it.

         I. BACKGROUND

         Pape 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, [1] 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 his sentence).

         Three 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.

         Two months later, Pape filed this motion. ECF No. 67.

         II. ANALYSIS

         Pape's 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.

         A. Pape Failed To Seek Certification Under 28 U.S.C. § 2255(h)

         As a 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. § 2255(h).

         A Rule 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).

         Pape's motion is a second[2] § 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. ...


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