United States District Court, D. Minnesota
Melinda A. Williams, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, on behalf of
Brandon Lee McMurtrey, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Brandon Lee McMurtrey's
(“McMurtrey”) Motion to Vacate under 28 U.S.C.
§ 2255 [Docket No. 31] (“2255 Motion”) and
Motion to Amend Pleading [Docket No. 34] (“Motion to
Amend”), and Plaintiff United States of America's
Motion to Dismiss [Docket No. 41] the 2255 Motion as
untimely. For the reasons stated below,
McMurtrey's Motions are denied and the Government's
Motion is granted.
April 15, 2015, a single-count indictment named McMurtrey as
a felon in possession of a firearm - armed career criminal,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Indictment [Docket No. 1]. On June 19, 2015, McMurtrey
entered a plea of guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
See Min. Entry [Docket No. 18]; Plea Agreement
[Docket No. 19]. The statutory maximum term of imprisonment
for this offense is 10 years (120 months). 18 U.S.C. §
Plea Agreement, the parties stipulated that McMurtrey's
base offense level was 24, pursuant to § 2K2.1(a)(2) of
the United States Sentencing Guidelines . This Guideline
states that a base offense level of 24 applies “if the
defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(2). Prior to the
instant offense, McMurtrey had been convicted of multiple
crimes, including third-degree burglary (a felony) committed
on October 28, 2006 at age 19, and third degree assault (also
a felony) committed on April 26, 2009 at age 21. Presentence
Investigation Report (“PSR”) ¶¶ 15, 46,
September 29, 2015, the Court sentenced McMurtrey to 90
months imprisonment to run concurrently with his state court
sentence. See Min. Entry [Docket No. 28]; Sentencing
J. [Docket No. 29] at 2. Judgment was entered on September
30, 2015. Sentencing J. The Court adopted the Sentencing
Guidelines calculations in the PSR which, after accounting
for acceptance of responsibility, resulted in a total offense
level of 29 and a criminal history category of VI. PSR
¶¶ 25-27, 60. The resulting Guidelines imprisonment
range was 151 to 188 months, which exceeded the 120-month
statutory maximum. PSR ¶¶ 100-101; Statement of
Reasons at 1. Therefore, McMurtrey's 90-month sentence
was a significant downward departure from the Guidelines
March 19, 2018, more than two years after McMurtrey's
judgment of conviction became final,  McMurtrey filed this 2255
Motion. McMurtrey argues that in light of the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), he should not have been sentenced as a
career criminal under §§ 922(g)(1) and 924(e). 2255
Motion at 9. McMurtrey claims he received ineffective
assistance of counsel because his attorney did not object to
“numerous issues” related to his criminal history
in the PSR, and did not file an appeal after McMurtrey
repeatedly told him to do so. Id. at 5-8, 10-11.
McMurtrey states that he attempted to file a § 2255
motion in September 2016 by delivering it to a Federal Bureau
of Prisons Corrections Officer in Terre Haute, Indiana, but
the motion was never filed. Id. at 8. McMurtrey
further states that in December 2017, he asked family members
to inquire whether the § 2255 motion had been filed and
was informed that it had not been filed. Id.
April 9, 2018, McMurtrey filed the Motion to Amend, seeking
to amend his 2255 Motion “based on new case law and his
lack of opportunity to file prior to the date due to
extraordinary circumstances.” Mot. Am. at 1. In the
Motion to Amend, McMurtrey states that he was unable to file
the 2255 Motion earlier because he was serving his state
court sentence until October 4, 2016 and did not have access
to a federal law library during this time. Id. After
arriving at the Terre Haute facility on October 15, 2016, he
sought but could not obtain legal help from prison officials.
Id. McMurtrey states that he was unable to represent
himself because he suffers from has a disability which causes
fainting spells and disorientation. Id.
Motion to Amend includes the following additional challenges
to his sentence: (1) one of the predicate offenses used for
enhancing his sentence to armed career criminal status was
committed while he was a juvenile and thus does not qualify
as a “violent felony” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e);
and (2) new law decided after McMurtrey's conviction
establishes that Minnesota's third-degree burglary
statute does not qualify as a predicate offense under the
ACCA. Mot. Am. at 2 (citing Mathis v. United States,
136 S.Ct. 2243, 2251 (2016); United States v.
McArthur, 850 F.3d 925 (8th Cir. 2017)).
20, 2018, the Government filed the Motion to Dismiss, arguing
the § 2255 Motion must be dismissed as untimely under 28
U.S.C. § 2255(f).
U.S.C. § 2255 provides a person in federal custody with
a limited opportunity to collaterally attack the
constitutionality, jurisdictional basis, or legality of his
sentence. See United States v. Addonizio, 442 U.S.
178, 185 (1979). Relief is reserved for violations of
constitutional rights and for a narrow range of injuries
which were outside a direct appeal and which, if untreated,
would result in a miscarriage of justice. See Poor
Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir.