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United States v. McMurtrey

United States District Court, D. Minnesota

July 11, 2018

United States of America, Plaintiff,
Brandon Lee McMurtrey, Defendant.

          Melinda A. Williams, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Brandon Lee McMurtrey, pro se.




         This 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.[1] For the reasons stated below, McMurtrey's Motions are denied and the Government's Motion is granted.[2]


         On 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. § 924(a)(2).

         In the 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, 51.

         On 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 range.

         On March 19, 2018, more than two years after McMurtrey's judgment of conviction became final, [3] 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.

         On 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.

         The 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)).

         On June 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).


         28 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. 1987).

         A. ...

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