LeBeau v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GERALD WAYNE LEBEAU,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
5:19-CV-05011-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on Gerald Wayne LeBeau’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Doc. 1). The pending
matter was referred to this magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the standing order of the Honorable Jeffrey L. Viken, United
States District Court Judge.
BACKGROUND
On August 14, 2015, LeBeau was convicted of three offenses by a jury:
(1) possession with intent to distribute cocaine; (2) conspiracy to distribute
cocaine; and (3) conspiracy to distribute marijuana1. An amended judgment of
conviction was filed on November 9, 2015. (Doc. 507). LeBeau timely filed a
direct appeal and on August 14, 2017, the Eighth Circuit Court of Appeals
affirmed his conviction. (Doc. 552). LeBeau did not file an appeal to the
1 The criminal file is 5:14-cr-50048-KES-1.
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Supreme Court of the United States. Ordinarily, Mr. LeBeau’s conviction
would have become final for purposes of a § 2255 habeas petition on the
expiration of his date to appeal to the Supreme Court of the United States, i.e.
90 days following the Eighth Circuit Court of Appeal’s judgment affirming the
District Court. Mr. LeBeau’s conviction would have then become final on
November 12, 2017. However, Justice Gorsuch granted Mr. LeBeau a 60-day
extension of time to file a petition for writ of certiorari with the Supreme Court
of the United States.2
As such, Mr. LeBeau’s conviction became final when he did not file an
appeal to the Supreme Court of the United States on January 11, 2018. Mr.
LeBeau had one year to file his present § 2255 habeas petition. As such, the
deadline for filing the present habeas petition was January 11, 2019. Mr.
LeBeau’s present § 2255 habeas petition was not filed until January 30, 2019,
or 19 days after the deadline had expired.3 The court received LeBeau’s habeas
2 Gerald Wayne LeBeau v. United States, Application No. 17A599,
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/ht
ml/public/17a599.html.
3 Federal prisoners are afforded the benefit of the “mailbox rule” regarding
timely filing of § 2255 petitions. The § 2255 habeas petition will be deemed
“filed” the day it is placed into the prison mailing system. However, if the
prison has a system designed for legal mail, the inmate must use that system
to receive the benefit of the mailbox rule. Rules Governing § 2255 Cases,
Rule 3. Mr. LeBeau certified that his petition was placed into the prison
mailing system on January 30, 2019. (Doc. 1 at p. 13). However, a
subsequent pleading filed by LeBeau undermines the credibility of this. At
Doc. 21, p. 7, he explains that “Believing he would be departing USP Yazoo
immediately, the Petitioner pre-dated his § 2255 habeas petition as January
30th, 2019 before placing it into his personal property. The Petitioner believed
he would be receiving his personal property upon arrival at his designated
facility in Coleman, Florida. However, he was not transported out of USP Yazoo
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petition on February 20, 2019. (Docs. 1, 2). After the petition was untimely
filed, LeBeau moved the court for an extension of sixty days to file his petition.
(Doc. 4). In the motion, LeBeau stated that he had been in transit to a different
correctional facility and although he had recently arrived, his property had not.
The extension motion was dated February 18, 2019, and received by the court
on February 25, 2019. LeBeau then filed an amended § 2255 habeas petition
on May 15, 2019. (Doc. 25).
The United States filed an answer and motion to dismiss the petition on
the grounds that the petition was untimely filed and therefore, LeBeau failed to
state a claim for relief and/or that this court lacked subject matter jurisdiction.
(Doc. 9). On November 22, 2019, the court entered an order to show cause
directing LeBeau to show cause as to why his § 2255 motion should not be
dismissed as untimely. (Doc. 16). LeBeau moved the court for an extension of
time to file his response and the court granted the motion setting the deadline
to respond to January 12, 2020. (Docs. 17, 19).
LeBeau filed his responses to the order to show cause on January 28,
2020. (Docs. 21, 22). Other non-responsive pleadings were also received from
LeBeau during this time frame.4 On July 13, 2020, LeBeau filed a
until January 31st, 2019.” It appears that LeBeau may not have mailed the
petition until sometime in February 2019.
4 On March 11, 2020, LeBeau objected to the government’s motion to file
affidavits. (Doc. 23). LeBeau also filed a motion to amend his § 2255 petition
on April 9, 2020 (Doc. 24), as well as a “Supplement Motion for Supporting
Facts” on May 15, 2020 (Doc. 25). Neither of these two pleadings address the
timeliness issues, but instead raise additional arguments regarding the
substance of his § 2255 petition.
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supplemental response regarding equitable tolling. (Doc. 26). Another
supplemental pleading from LeBeau was filed on June 22, 2021. (Doc. 27).
DISCUSSION
The statute of limitations for § 2255 motions is as follows:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
See 28 U.S.C. § 2255(f).
Of the four specified dates listed in § 2255(f), only one is relevant here-
“the date on which the judgment of conviction becomes final.” Id. A judgment
is deemed final “where the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for certiorari had
elapsed [or a petition for certiorari finally denied...].” United States v. Johnson,
457 U.S. 537, 543, n. 8 (1982) (citation omitted); see also Clay v. United States,
537 U.S. 522, 527 (2003) (for the purpose of starting § 2255's one-year
limitation period, “[f]inality attaches when [the Supreme] Court affirms a
conviction on the merits on direct review or denies a petition for a writ of
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certiorari, or when the time for filing a certiorari petition expires.”). The time for
filing a petition for certiorari is 90 days after entry of the court of appeals’
judgment. Clay, 537 U.S. at 525.
As noted above, LeBeau’s conviction became final when he did not file an
appeal to the Supreme Court of the United States on January 11, 2018. Mr.
LeBeau had one year to file his present § 2255 habeas petition. As such, the
deadline for filing the present habeas petition was January 11, 2019. Mr.
LeBeau’s present § 2255 habeas petition was not filed until January 30, 2019.
(Doc. 1). Initially, LeBeau conceded that his petition was untimely by nineteen
days. (Doc. 21 at p. 2). However, for the first time, in his supplemental brief
dated July 13, 2020, LeBeau asserts that his petition was not untimely
because his one-year deadline to file should have been in February of 2019.
(Doc. 26). In support of this, LeBeau states that he filed a second request for
an extension of time to the Supreme Court and that Justice Gorsuch denied
the motion on an unknown date in February of 2018. (Doc. 26 at p. 2).
LeBeau’s assertion was not made under penalty of perjury, nor is it supported
by any evidence. LeBeau cites “See DE 3-4” as support for the assertion that
he made a request for and was denied an extension. (Doc. 26 at p. 2).
However, no such attachment exists. Furthermore, a review of the file before
the United States Supreme Court does not contain any evidence of the claimed
continuance or denial. This court rejects LeBeau’s unsupported assertion that
he requested a second extension and was denied the same. Therefore,
LeBeau’s petition must be dismissed absent equitable tolling.
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I. Equitable Tolling
In the Eighth Circuit, the doctrine of equitable tolling applies to § 2255
motions. United States v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005).
Equitable tolling is an extraordinary remedy used only in rare circumstances
and “affords the otherwise time-barred petitioner an exceedingly narrow
window of relief.” Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001); United
States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). “ ‘[A]ny invocation of equity
to relieve the strict application of a statute of limitations must be guarded and
infrequent, lest circumstances of individualized hardship supplant the rules of
clearly drafted statutes.’ ” Jihad, 267 F.3d at 806 (quoting Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
Equitable tolling is only applicable in two instances: “(1) if there are
extraordinary circumstances beyond a movant’s control that would keep him
from filing in a timely fashion or (2) if the government’s conduct ‘lulled’ the
movant into inaction through reliance on that conduct.” United States v.
Hernandez, 436 F.3d 851, 858 (8th Cir. 2006) (internal citations omitted).
“Equitable tolling only applies when the circumstances that cause the delay in
filing are ‘external to the plaintiff and not attributable to his actions.’ ” Id. at
858 (citing Maghee v. Ault, 410 F.3d 473, 476 (8th Cir. 2005)) (additional
citations omitted). Further, [t]he petitioner must also demonstrate that he
acted with due diligence in pursuing his [§ 2225] petition. E.J.R.E. v. United
States, 453 F.3d 1094, 1097 (8th Cir. 2006).
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The burden is on Mr. LeBeau to demonstrate circumstances exist which
would justify equitable tolling. Id. LeBeau sets forth several grounds for
equitable tolling. (Doc. 21 at pp 3-4). First, LeBeau argues that he filed a
series of motions in his criminal file5 in the summer and fall of 2018, including
a motion to correct (Doc. 558), a motion for return of property (Doc. 559), a
motion to compel the government to respond (Doc. 560), a motion requesting a
remedy for destroyed property (Doc. 568), and a motion for legal advice from
the court (Doc. 568). These pleadings all contained LeBeau’s handwritten
address as Yazzo, Miss. LeBeau does not provide any explanation regarding
why he was able to prepare and file the above-described pleadings and not a §
2255 petition during the same relevant time period. The only explanation for
the delay as offered by LeBeau is that he was an inmate at USP Yazoo,
Mississippi during the month of December 2018, and due to a hurricane that
struck the state of Florida, federal inmates at FCI Merianna were transported
to USP Yazoo. (Doc. 21 at pp. 6-8). LeBeau believed that this would cause him
to be redesignated to other federal facilities throughout the country. Id.
LeBeau concedes that he was not transported out of Yazoo until January 31,
2019. Id. at p. 7. However, he states that he was without his personal
property, in lockdown status, restricted to his housing unit and had no access
to the law library. Id. LeBeau’s remaining explanations are relevant to the
time period after the filing deadline had passed. (Doc. 21 at p. 8; Doc. 22).
Giving petitioner the benefit of the doubt, LeBeau provides an explanation for
5 Criminal file5:14-cr-50048-KES-1.
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the last 42 days of the filing time period; however, he offers no explanation for
the preceding 323 days. The exhibit LeBeau attached to his brief demonstrates
that from July 3, 2018, until January 31, 2019, he was housed at Yazoo,
Mississippi. (Doc. 22 at p. 6).
A. Extraordinary Circumstances
“The extraordinary circumstance that prevents a petitioner from filing his
federal application must be external to the petitioner and not attributable to
his actions.” Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012).
A petitioner’s pro se status and failure to follow the rules does not constitute
extraordinary circumstances. Id. Nor does lack of legal knowledge. Maghee v.
Ault, 410 F.3d at 476-77; Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir.
2004). Lack of access to legal research materials or legal assistance is not, in
and of itself, grounds for equitable tolling, but may suffice for tolling only if the
petitioner can demonstrate how lack of access hindered his efforts to pursue
his claim. Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007). Here, LeBeau
provides no explanation of how being on lockdown prevented him from
continuing work on the motion, thus prejudicing him in meeting the one-year
limitations deadline.
In the case of Muhammad v. United States, a § 2255 petitioner argued
that a five-month detention in the Special Housing Unit constituted
extraordinary circumstances warranting the application of equitable tolling.
735 F.3d 812 (8th Cir. 2013). The Eighth Circuit held:
While we do not foreclose the possibility that another movant
might be able to show how the conditions of his confinement
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constitute an extraordinary circumstance warranting the
application of equitable tolling, [petitioner] fails to demonstrate
how his five months of special confinement prevented him from
meeting the one-year statute of limitations. He acknowledges that
he was able to send letters during his confinement which suggests
he had access to paper and writing implements. He does not claim
that he was prohibited from contacting the court or was denied any
mail sent from the court. Although he claims that he was not
allowed access to the prison’s law library during this special
confinement, we have recognized that equitable tolling was not
proper when an unrepresented prisoner claimed lack of legal
resources. Accordingly, we agree with the district court that
[petitioner’s] five-month confinement in the Special Housing Unit
does not constitute an extraordinary circumstance warranting the
application of equitable tolling.
Muhammad, 735 F.3d at 815 (internal citations omitted). In recent years,
several courts have addressed claims of equitable tolling due to prison
lockdowns and the closure of prison law libraries as a result of COVID-19.
Those courts6 have held that petitioners are not entitled to equitable tolling if
there is no evidence that they diligently pursued their right to file a § 2255
motion prior to being lockdown.
B. Due Diligence
The Holland Court held that a petitioner must establish “reasonable
diligence” in pursuing his federal habeas rights, not “maximum feasible
diligence.” Holland v. Florida, 560 U.S. 631, 653 (2010).
The Eighth Circuit has summarized what does and does not constitute
due diligence on the part of the petitioner:
A petitioner acts with diligence when, for example, he writes letters
to his attorney asking her to file a habeas petition, contacts the
6 See United States v. Thomas, No. CR18-135, 2020 WL 7229705, at *2 (E.D.
La. Dec. 8, 2020); United States v. Barnes, No. 18-CR-0154-CVE, 2020 WL
4550389, at *2 (N.D. Okla. Aug. 6, 2020).
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court to learn about the status of his case, seeks to have his
attorney removed for failure to pursue his case, and files a pro se
petition the very day that he learns it is late. In contrast, a
petitioner does not act diligently when he simply assumes that his
attorney is working on his case even though she does not respond
to his communication and hangs up on him when he calls.
See Williams v. Kelley, 830 F.3d 770, 773 (8th Cir. 2016).
In one case, where the petitioner was prevented from filing for three
months due to his medical status (he was placed on suicide watch), the court
held no extraordinary circumstances were presented because petitioner failed
to show why he could not have filed in the nine months remaining of the
limitations period. Gordon v. Arkansas, 823 F.3d 1188, 1195-96 (8th Cir.
2016). See also Nelson v. Norris, 618 F.3d 886, 892-93 (8th Cir. 2010)
(petitioner failed to demonstrate due diligence when he failed to take any action
for nine months).
In another case, a petitioner wrote a letter to the court six weeks before
the AEDPA limitations period was going to expire, asking to speak to his public
defender about some matters unrelated to filing a federal habeas petition.
English v. United States, 840 F.3d 957, 959 (8th Cir. 2016). No habeas
petition was filed. Id. The petitioner waited another six months before filing
the petition on his own. Id. The court held the petitioner did not act with due
diligence. Id.
Here, LeBeau is completely silent as to what actions he took prior to the
42 days in which he asserts he was in lockdown and without his personal
property. The pleadings in his underlying criminal file show that on June 25,
2018, Mr. LeBeau filed a motion requesting that the court review the
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magistrate judge’s report and recommendation regarding the suppression
issues raised pretrial. (Doc. 558). The court filed an order denying the motion
and explained that it previously ruled on all objections which were raised to the
report and recommendation. (Doc. 563). Also on June 25, 2018, LeBeau filed
a motion for return of property which was granted in part and denied in part.
(Docs. 559, 565). On July 6, 2018, LeBeau filed a motion to compel his former
attorney to produce his client file. (Doc. 560). LeBeau specifically
acknowledged that he needed the files to prepare his § 2255 motion and that
he was aware of the one-year filing deadline. (Doc. 560). On July 12, 2018,
the court denied the motion based on a pleading filed by LeBeau’s former
attorney stating that he previously provided a complete copy of the file to
LeBeau. On September 14, 2018, LeBeau filed a pleading advising that his son
was authorized to pick up his personal property. (Doc. 566). On October 25,
2018, LeBeau moved the court to order the government respond to the
suppression motion which was raised pretrial and requested that the court rule
on the suppression motion. (Doc. 567). On the same date, LeBeau made a
motion for legal advice asking about reimbursement for his computer which
was destroyed. (Doc. 568). On October 26, 2018, the court denied the motions
and again informed LeBeau that the court previously ruled on the suppression
motion in its order at Docket 324. (Doc. 569). LeBeau’s filings make it clear
that he was aware of the ability to file a § 2255 habeas action and that he knew
there was a one-year filing deadline from the date that his judgment was final.
(Doc. 560 at p. 2). Despite this knowledge, his filings during the relevant time
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period involve asking the court to rule on a moot suppression issue, as well as
litigating the return of personal property. The court finds that this does not
constitute due diligence. Furthermore, the court finds that a single motion
filed six months before the habeas filing deadline asking that his attorney
produce client files does not constitute due diligence.
The court concludes that LeBeau has not established there were any
extraordinary circumstances beyond his control that despite his due diligence,
prevented him from timely filing his § 2255 motion. Because the initial motion
is untimely filed, his proposed supplemental motions are also untimely.
CONCLUSION
Based on the foregoing facts, law and analysis, this court respectfully
recommends that Mr. LeBeau’s § 2255 motion to vacate, set aside, or correct
his sentence (Doc. 1) be denied with prejudice as untimely. It is further
recommended that the United States’ Motion to Dismiss (Doc. 9) be granted.
The court further recommends that the Government’s conditional motion for
continuance (Doc. 11) be denied as moot. The court further recommends that
no certificate of appealability be issued.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
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District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 27th day of January, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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