United States District Court, D. Minnesota
S. Becker, Assistant Federal Defender, Federal Defender's
Office, counsel for Petitioner-Defendant.
M. Brennan, Assistant United States Attorney, United States
Attorney's Office, counsel for the Government.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court upon Paul McCurry's
(“Petitioner-Defendant”) Motion under 28 U.S.C.
§ 2255 to vacate and correct his sentence. (Doc. No.
79). The Government opposes the motion. (Doc. No. 84). For
the reasons set forth below, the Court respectfully denies
general factual background and procedural history in this
matter are more fully set forth in the Court's previous
Order granting Petitioner-Defendant's second motion to
extend the stay of proceedings (Doc. No. 89) and incorporated
herein by reference. Relevant here, on October 23, 2015, the
Court sentenced Petitioner-Defendant to 180 months'
imprisonment to be followed by five years' supervised
release pursuant to his plea of guilty to possessing a
firearm as a convicted felon. (Doc. No. 62.)
Petitioner-Defendant's sentence was enhanced under the
Armed Career Criminal Act (“ACCA”) pursuant to 18
U.S.C. § 924(e) after the Court determined that he had
three prior convictions for qualifying violent felonies.
(Doc. No. 63 (“Stmt. Reasons”), Sec. I, B.3.)
Petitioner-Defendant's criminal history includes a 2005
conviction for First Degree Aggravated Robbery, in violation
of Minn. Stat. § 609.245 subd. 1, a 2005 conviction for
Attempted First Degree Aggravated Robbery, also in violation
of Minn. Stat. § 609.245. subd. 1, and a 2007 conviction
for Domestic Assault by Strangulation, in violation of Minn.
Stat. § 609.2247 subd. 2. (Doc. No. 79 at 4.)
Petitioner-Defendant now challenges the counting of his two
aggravated robbery convictions as ACCA predicates.
Petitioner-Defendant's unsuccessful appeal of his
sentence and the Supreme Court's denial of certiorari
(see United States v. McCurry, 832 F.3d 842 (8th
Cir. 2016); Doc. Nos. 74, 77), Petitioner-Defendant timely
filed a motion under 28 U.S.C. § 2255 to vacate and
correct his sentence. (Doc. No. 79.)
requested a stay because several cases addressing whether
Minnesota's robbery statute met the ACCA's definition
of a violent felony were pending before the Eighth Circuit
and a controlling decision in one of those cases could have
favorably affected his matter. (Doc. No. 80.) At that time,
the Government did not object to the motion, which the Court
granted. (Doc. No. 83.)
Eighth Circuit then decided several cases in a manner that
can be properly characterized as consistent with the
Government's interpretation of a violent felony with
respect to the Minnesota robbery statute. See United
States v. Libby, 880 F.3d 1011 (8th Cir. 2018);
United States v. Pettis, 888 F.3d 962 (8th Cir.
2018). Petitioner-Defendant filed his second motion to stay
pending the Supreme Court's decision in
Stokeling. (Doc. No. 85.) The Government opposed the
motion, citing the Eight Circuit's decisions in
Libby and Pettis. (Doc. No. 87.) The Court
granted the second motion to stay because the parties agreed
that the language of the statute in question in
Stokeling was substantially similar to the language
in the Minnesota robbery statute, thus there was more than a
slight likelihood that the Supreme Court's decision would
potentially affect and influence the Court's analysis of
the Minnesota robbery statute under the ACCA.
Court denied Petitioner-Defendant's third motion to stay
following the Supreme Court's Stokeling opinion
and a series of opinions issued by the Eighth Circuit that
have clarified the issues in this case. (Doc. No. 93). The
parties did not submit supplemental briefing on this matter.
claims that two of the three prior convictions considered
predicates for sentencing purposes no longer qualify as such
under the force clause of the ACCA. The Government contends
that Petitioner-Defendant's arguments with respect to
Minnesota's first degree aggravated robbery statute were
procedurally defaulted because there was no shift in law that
would warrant consideration of an issue not raised on direct
appeal, and in any case, Petitioner-Defendant's claims
are without merit in light of recent ...