United States District Court, D. Minnesota
R. Winter, Assistant United States Attorney, for plaintiff.
Wakinyan Wakan McArthur, pro se defendant.
MEMORANDUM OPINION DENYING § 2255
R. TUNHEIM Chief Judge United States District Court
March 19, 2013, a jury convicted Defendant Wakinyan Wakan
McArthur of six counts, including - as relevant to the
pending motion - Conspiracy to Participate in Racketeering
pursuant to 18 U.S.C. § 1962(d) and 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), (b)(1)(B), (b)(1)(C) and
846 and Aiding and Abetting the Use and Carrying of a Firearm
during a Crime of Violence pursuant to 18 U.S.C. §
924(c)(1)(A). (Jury Verdict at 1-3, 9, Mar. 19, 2013, Docket
No. 1098; Sentencing J. at 1, Oct. 9, 2014, Docket No. 1430.)
McArthur was sentenced to 516 months in prison on September
30, 2014. (Sentencing J. at 2.) Originally, McArthur was
convicted of two separate counts under § 924(c)(1)(A)
corresponding with two separate acts undertaken as part of
the racketeering conspiracy. (See Redacted
Superseding Indictment ¶¶ 94, 102, Mar. 19, 2013,
Docket No. 1096; Jury Verdict at 9.)
his direct appeal was pending, on June 27, 2016, McArthur
filed a pro se motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. (Pro
Se Mot. to Vacate, June 27, 2016, Docket No. 1628.) In the
motion, McArthur argues that the holding in Johnson v.
United States, 135 S.Ct. 2551 (2015) - in which the
Supreme Court invalidated as unconstitutionally vague the
residual clause in the definition of "violent
felony" in § 924(e)(2) - extends to the residual
clause in the definition of "crime of violence"
found in § 924(c)(3)(B). (Id.) McArthur then
argues that after applying the categorical approach, his
predicate offense - racketeering - does not qualify as a
"crime of violence" under the "force"
clause found at § 924(c)(3)(A). (Id. at 3.)
McArthur filed the instant motion, the Eighth Circuit vacated
McArthur's second § 924(c) conviction on February
23, 2017, at the government's request, because the
charging decision was in violation of an internal Department
of Justice policy "provid[ing] that each § 924(c)
charge in an indictment should be based on a separate
predicate offense." United States v. McArthur,
850 F.3d 925, 940-41 (8th Cir. 2017). The Eighth
Circuit vacated the entire judgment and remanded under the
sentencing package doctrine articulated in Greenlaw v.
United States, 554 U.S. 237, 253 (2008), see
McArthur, 850 F.3d at 943, and on May 31, 2017, the
Court resentenced McArthur to a term of 480 months'
imprisonment on the remaining counts of conviction, which
included one count under § 924(c)(1)(a), (3), (Ct. Mins.
- Criminal, May 31, 2017, Docket No. 1741).
2255 permits a prisoner to move the court that sentenced him
to "vacate, set aside or correct the sentence" on
the grounds that "the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). "Relief under 28 U.S.C. §
2255 is reserved for transgressions of constitutional rights
and for a narrow range of injuries that could not have been
raised on direct appeal and, if uncorrected, would result in
a complete miscarriage of justice." Walking Eagle v.
United States, 742 F.3d 1079, 1081-82 (8th
Cir. 2014) (quoting United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996)).
extent McArthur's § 2255 motion is a challenge to
the judgment imposed on September 30, 2014, the Court finds
that the motion is moot because the Eighth Circuit vacated
the judgment in its entirety in February 2017. However, on
May 31, 2017, the Court did enter a new judgment on one count
under § 924(c), and McArthur's motion could be
interpreted as a challenge to the validity of that
motion under § 2255 is "not a substitute for direct
appeal." Auman v. United States, 67 F.3d 157,
161 (8th Cir. 1995) (quoting United States v.
Wilson, 997 F.2d 429, 431 (8th Cir. 1993)).
The window of time to appeal McArthur's sentence has not
yet expired, and it is the Court's understanding that
McArthur could raise the issues in his § 2255 motion on
direct appeal. Thus, to the extent the pre-existing §
2255 motion is a challenge to the new judgment, the Court
will dismiss the motion without prejudice as
premature. Because McArthur filed the motion
prior to the entry of the operative judgment, the Court will
not consider a future § 2255 petition from McArthur to
be "second or successive" under § 2255(h).
Court may grant a Certificate of Appealability only where the
movant "has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
The movant must show that "the issues are debatable
among reasonable jurists, that a court could resolve the
issues differently, or that the issues deserve further
proceedings." Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For purposes of
appeal under 28 U.S.C. § 2253, the Court finds that
McArthur has not shown that reasonable jurists would find the
issues raised in McArthur's § 2255 motion debatable,
that some other court would resolve the issues differently,
or that the issues deserve further proceedings. The Court
therefore declines to grant a Certificate of Appealability in
on the foregoing, and all the files, records, and proceedings