USA v. Red Legs

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA 3: 19-CR-030073-RAL
vs.
DUSTIN RED LEGS
Plaintiff,
Defendant.
OPINION AND ORDER DENYING
MOTION TO EXTEND TIME TO FILE§
2255 MOTION
Dustin Red Legs (Red Legs) filed a motion to extend his deadline to file a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his criminal convictions for possession of child
pornography, sexual exploitation of a minor, and aggravated sexual abuse of a child. Red Legs
claims that extraordinary circumstances could prevent him from meeting his one-year deadline to
file§ 2255 motion. Red Legs has not filed an actual§ 2255 motion, but requests only an extension
to file such a motion. For the reasons set forth below, this Court denies Red Legs's motion for an
extension to file a§ 2255 motion.
I. Facts
In July 2020, a jury found Red Legs guilty of three separate charges. Doc. 95. After being
sentenced in November 2020, Doc. 119, Red Legs filed a timely appeal, Doc. 120. The United
States Court of Appeals for the Eighth Circuit then affirmed the judgement and commitment as to
Red Legs on March 21, 2022, Doc. 146; Doc. 149-1 at 2, and denied the petition for a rehearing
on April 20, 2022, Doc. 147; Doc. 149-1 at 2.
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On June 21, 2022, Red Legs, acting pro se, sent a letter to the "United States District Court
For the Eighth Circuit" moving for a ninety-day extension to file a § 2255 motion. Doc. 149-1 at
3. In his motion, Red Legs cited "extraordinary circumstances" that prevented him from doing
legal research required to support his § 2255 motion. Id. Specifically, Red Legs claims that he
would be unable to file a timely § 2255 motion "due to COVID-19 circumstances and the
operations at all Bureau of Prisons institutions, and lockdowns due to pandemic restrictions.
Additionally, there have been power outages, the phone system has been offline, and the education
department has been closed, hence the law library has been closed as well." Id. Red Legs also
indicated that he was "waiting for legal documents to arrive from [his] family in support of [his]
2255. [He was also] waiting for pertinent medical records from the hospital that [he] will use as
exhibits." Id,
The Eighth Circuit Clerk of Court subsequently received and responded to Red Legs's
motion stating that his case in that court was now closed. Id. at 2. Red Legs then sent a letter to
this Court on July 5, 2022, asking for the same extension and that a standard § 2255 motion form
be sent to him, Doc. 149, and attached the initial motion he had sent, as well as the Eighth Circuit
Clerk of Court's response, Doc. 149-1.
II. Discussion
Section 2255(a) states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
If Red Legs is planning to seek compassionate release due to some medical conditions, the proper
vehicle is not a § 2255 motion but a motion for compassionate release filed in this case under the
First Step Act.
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move the court which imposed the sentence to vacate, set aside or correct the
sentence.
When a party files a motion pro se, a court is to interpret arguments in the motion broadly.
Sappineton v. United States, 523 F.2d 858, 860 (8th Cir. 1975) (per curiam). Under 28 U.S.C. §
2255, a person in federal custody has one year from "the date of which the judgement of conviction
becomes final" to make the motion. 28 U.S.C. § 2255(f). This one-year time limit "is a statute of
limitation and not a jurisdictional bar." Moore v. United States, 173 F.3d 1131, 1134 (8th Cir.
1999). A court can equitably toll such a limitations period for extraordinary circumstances.
Muhammad v. United States, 735 F.3d 812. 815 f8th Cir. 2013) (quoting Holland v. Florida, 560
U.S. 631, 649 (2010)); see also United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005).
But, a court's determination of whether to grant equitable tolling can only occur upon the
filing of the § 2255 motion. United States v. Poole, No. CR13-30003, 2015 WL 13283253, at *1
(N.D. Iowa July 6,2015). The basis for this requirement is that "a federal court lacks jurisdiction
to consider the timeliness of a § 2255 petition until a petition is actually filed." United States v.
Anderson, No. 03-426, 2007 WL 2973838, at *1 (D. Minn. Oct. 9,2007) (cleaned up and citations
omitted). Without a petition to examine, any opinion as to the timeliness of the petition would be
advisory and thus presents a non-justiciable question. Id. Though neither the Eighth Circuit nor
the District of South Dakota previously has addressed this question, most circuit courts have found
similarly. See United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (per curiam) (stating that
the court lacks jurisdiction to consider the timeliness of a § 2255 petition until it is filed); United
States v. White. 257 Fed. ApD'x 608. 609 f4th Cir. 2007) (per curiam) Csame); United States v.
McFarland, 125 Fed. App'x 573. 574 f5th Cir. 2005) fper curiam') fsame): United States v, Moore,
56 Fed. App'x 686, 687 (6th Cir. 2003) (same); Swichkow v. United States, 565 Fed. App'x 840,
843^4 (11th Cir. 2014) (per curiam) (same). But see United States v. Thomas, 713 F.3d 165,169
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(3rd Cir. 2013) (finding that a § 2255 motion is a continuation of the underlying criminal case,
which satisfies the justiciability requirement under Article III of the U.S. Constitution). Within
the Eighth Circuit, other district courts have followed the approach that such an issue of equitable
tolling is not ripe until a § 2255 motion is filed. Howard v. United States, No. 4:10CV300, 2010
WL 1424026, at *1 (E.D. Mo. Apr. 9, 2010) (dismissing a motion for extension to file a § 2255
motion based on lack ofjusticiability); Anderson, 2007 WL 2973838, at *1 fsame); Poole, 2015
WL 13283253, at *1 (dismissing a motion for leave to file a late petition based on a lack of
justiciability).
However, a motion for an extension can be considered a § 2255 motion if it contains
sufficient grounds for a claim. Howard, 2010 WL 1424026, at *1. Because pro se motions are to
be interpreted broadly, Sappineton, 523 F.2d at 860, "a district court should first view the motion
liberally and determine whether it may be construed as a § 2255 motion" before dismissing the
motion for an extension, Howard, 2010 WL 1424026, at *1. To be construed as a § 2255 motion
the motion should identify colorable grounds for relief and some summary of a factual basis for
the asserted grounds for relief. See Anderson, 2007 WL 2973838, at *1 (citations omitted).
Without such information, the motion for an extension of time for equitable tolling cannot be
considered a § 2255 motion. Id, at * 1-2 (finding that a motion "for an extension ofninety[](90)[]
day[s] to prepare and file [defendant's] § 2255 motion" was insufficient to be construed as a §
2255 motion "even with the benefit of liberal construction").
Red Legs filed only the motion to extend, not any § 2255 motion. Doc. 149. Even broadly
interpreting Red Legs's motion for an extension, it does not qualify as a § 2255 motion because it
fails to specify any claimed grounds for relief available, let alone any factual basis for those
grounds. See Doc, 149-1. Additionally, Red Legs requests that "this court order the clerk of court
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to mail [him] the boiler plate form used to make a § 2255 petition," id., which indicates he did not
intend his request to be interpreted as a § 2255 motion. Because no motion was filed, any opinion
rendered relating to the extension limitations period would be advisory. Thus, the Court must deny
the motion for an extension. However, nothing here prevents Red Legs from filing his § 2255
motion and he appears to have until July 19, 2023, to do so, which is one year after when Red
Legs' time to file a petition for certiorari expired after the April 20, 2022, denial of rehearing en
banc. See Clay v. United States, 537 U.S. 522, 525 (2003) ("For the purpose of starting the clock
on § 2255's one-year limitation period, we hold, a judgement of conviction becomes final when
the time expires for filing a petition for certiorari contesting the appellate court's affirmation of
the conviction" even if such a petition is not filed.)
III. Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Red Legs's motion for an extension to file a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence, Doc. 149, is denied.
DATED this^o^day of August, 2022.
BY THE COURT:
<2^^(
ROBERTO A. LANG^
CHIEF JUDGE
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