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United States v. McCurry

United States District Court, D. Minnesota

November 13, 2019

United States of America, Respondent-Plaintiff,
v.
Paul McCurry a/k/a Paul Wesley McCurry a/k/a Paul McCurry, Jr., Petitioner-Defendant.

          James S. Becker, Assistant Federal Defender, Federal Defender's Office, counsel for Petitioner-Defendant.

          Amber 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

         INTRODUCTION

         This 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 Petitioner-Defendant's motion.

         BACKGROUND

         The 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.)

         Specifically, 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.

         Following 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.)

         Petitioner-Defendant 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.)

         The 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.

         The 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.

         Petitioner-Defendant 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 ...


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