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
ORDER DENYING PETITIONER’S
SECOND MOTION FOR EXTENSION,
ADOPTING REPORT AND
RECOMMENDATION, AND
GRANTING MOTION TO DISMISS
Petitioner, Gerald Wayne LeBeau, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. The United States
moves to dismiss the motion for failure to state a claim and for lack of subject
matter jurisdiction. Docket 9. The matter was referred to United States
Magistrate Judge Daneta Wollmann under 28 U.S.C. § 636(b)(1)(B) and this
court’s October 16, 2014, standing order. The Magistrate Judge recommends
that LeBeau’s § 2255 motion be denied with prejudice as untimely. Docket 29
at 12. LeBeau moved for a 30-day extension of the deadline to file objections,
which this court granted, setting a new objection deadline of March 14, 2022.
Dockets 30, 31. LeBeau now moves for another 30-day extension of the
objection deadline. Docket 32. For the following reasons, the court denies
LeBeau’s second motion for an extension, adopts the Magistrate Judge’s report
and recommendation in full, and grants respondent’s motion to dismiss.
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FACTUAL BACKGROUND
LeBeau was convicted of possession with intent to distribute cocaine,
conspiracy to distribute cocaine, and conspiracy to distribute marijuana on
August 14, 2015. CR Docket 467.1 An amended judgment of conviction was
filed on November 9, 2015. CR Docket 507. LeBeau appealed his conviction,
and the Eighth Circuit Court of Appeals affirmed his conviction on August 14,
2017. CR Docket 552. LeBeau moved for an extension of time to file a petition
for writ of certiorari with the Supreme Court. See Gerald Wayne LeBeau,
Applicant v. United States, Supreme Court of the United States,
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/ht
ml/public/17a599.html (last visited March 17, 2022). Justice Gorsuch granted
this motion, extending LeBeau’s time to file a petition for writ of certiorari until
January 11, 2018. Id. But then LeBeau did not file a petition for a writ with the
Supreme Court.
LeBeau filed this motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 on January 30, 2019.2 Docket 1 at 14. Respondent
1 Within this order, the court cites to documents in LeBeau’s civil § 2255 case
by citing the court’s docket number for that document. The court will cite to
“CR” when citing to documents filed in LeBeau’s criminal case found at United
States v. LeBeau, 5:16-14-50048-KES-1.
2 Under the prison mailbox rule, § 2255 motions are filed on the day they are
placed into the prison mailing system. Rule 3(d), Rules Governing § 2255
Proceedings. LeBeau certified that he placed his motion into the prison mailing
system on January 30, 2019. Docket 1 at 13. But in a later filing, LeBeau
explained that he predated his motion before placing it in his personal property
upon belief that he would be transferred to a new facility. Docket 21 at 7. This
transfer began on January 31, 2019, suggesting that LeBeau did not place his
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filed a motion to dismiss LeBeau’s motion for failure to state a claim for relief
and for lack of subject-matter jurisdiction. Docket 9. Respondent argues that
LeBeau’s motion is untimely because it was filed after the one-year limitation
period under 28 U.S.C. § 2255(f). Docket 10 at 3-7. LeBeau claims that
equitable tolling should apply to the one-year limitation period because he
alleges that extraordinary circumstances prevented him from timely filing his
motion and that he pursued his rights diligently. Docket 21 at 2-9. The
Magistrate Judge, in her report and recommendation, recommends that the
motion be dismissed because the circumstances that LeBeau alleges do not
justify equitable tolling. Docket 29 at 7-12.
DISCUSSION
I. 	LeBeau’s Motion for an Extension of Time to File Objections
LeBeau moves for a second 30-day extension of the time to file objections
to the Magistrate Judge’s report and recommendation. Docket 32. In a
supplemental brief dated July 13, 2020, LeBeau argues that his motion was
not untimely because he filed a second request for an extension of time to file a
petition for writ of certiorari with the Supreme Court, which was denied on an
unknown date in February of 2018. Docket 26 at 2. He also argues that this
denial of his request for an extension pushed his one-year § 2255 motion
deadline back until the same unknown date in February 2019, one year from
the denial. Id. Now, he claims that his Supreme Court docket sheet is
motion into the prison mailing system until February. See id. This court
received LeBeau’s § 2255 motion on February 20, 2019. Docket 1.
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necessary to complete his objections because it will show that he filed a second
request for an extension from the Supreme Court. See Docket 32 at 1-2.
LeBeau’s argument fails for two reasons. First, he puts forth no evidence
that the requested extension and denial occurred. LeBeau cites to “DE 3-4” to
support his claim, but he has filed no documents or attachments with this
label. See Docket 26 at 2. Further, the publicly available Supreme Court docket
sheet shows that LeBeau’s only request for an extension of time was granted by
Justice Gorsuch, but no subsequent request was made or denied. See Gerald
Wayne LeBeau, Applicant v. United States, Supreme Court of the United States,
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/ht
ml/public/17a599.html (last visited March 17, 2022).
But even if LeBeau’s allegation were true, his one-year § 2255 motion
deadline would still be January 11, 2019, one year from the expiration of his
granted Supreme Court extension. Under 28 U.S.C. § 2255(f)(1), the limitation
period relevant to LeBeau’s motion runs from “the date on which the judgment
of conviction becomes final[.]” “Finality attaches when [the Supreme] Court
affirms a conviction on the merits on direct review or denies a petition for a writ
of certiorari, or when the time for filing a certiorari petition expires.” Clay v.
United States, 537 U.S. 522, 527 (2003) (emphasis added). LeBeau’s time to file
a certiorari petition expired on January 11, 2018. Regardless of whether a
request to extend this deadline was made and denied, the deadline would have
been January 11, 2018. LeBeau’s argument would only have merit if his
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request to extend his deadline were granted, which he does not contend. See
Docket 26 at 2.
LeBeau asks this court for a second extension in order to find a publicly
available Supreme Court docket sheet that does not provide evidence of a
request for an extension that he alleges he submitted. Further, even if he had
requested this extension, it would have no impact on his case because he
admits the extension request was denied. Thus, this court denies LeBeau’s
request for an extension of the time to file objections to the Magistrate Judge’s
report and recommendation.
II. 	Respondent’s Motion to Dismiss
Respondent argues that LeBeau failed to timely file his motion under 28
U.S.C. § 2255(f). Docket 10 at 3-7. The Magistrate Judge recommends that this
court grant respondent’s motion to dismiss because LeBeau’s motion is
untimely. Docket 29 at 7-12. LeBeau has not filed objections to Magistrate
Judge Wollmann’s report and recommendation. After de novo review of the
record, this court adopts the Magistrate Judge’s report and recommendation.
LeBeau argues that the one-year statute of limitations should be
equitably tolled because of a hurricane that struck his facility in December
2018, restricting his access to the prison law library and to his partially
prepared § 2255 motion. Docket 21 at 6-8. “The one-year statute of limitation
may be equitably tolled ‘only if [the movant] shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way” and prevented timely filing.’ ” Muhammad v. United States,
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735 F.3d 812, 815 (8th Cir. 2013) (alteration in original) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). The Magistrate Judge explains that the
hurricane may have impeded LeBeau’s ability to file his § 2255 motion in “the
last 42 days of the filing time period; however, he offers no explanation for the
preceding 323 days.” Docket 29 at 7-8. Further, LeBeau filed several motions
in his criminal case during the one-year period, including one that referenced
the one-year filing deadline. See CR Dockets 558, 559, 560 at 2. The Magistrate
Judge explains that this merely shows LeBeau’s awareness of the deadline, not
that he was diligent in pursuing habeas relief. Docket 29 at 10-12.
This court agrees with the Magistrate Judge’s report and
recommendation. LeBeau cannot show extraordinary circumstances because
the circumstance he alleges, the hurricane, only interfered with his ability to
file his § 2255 motion during a small portion of the one-year period. He also
cannot show due diligence because he was aware of the one-year deadline and
put most of his efforts during that period toward litigating already-settled
issues in his criminal case. Respondent’s motion to dismiss is granted.
Thus, it is ORDERED:
1. 	That LeBeau’s motion for an extension of time (Docket 32) is
denied.
2. 	That respondent’s motion to dismiss (Docket 9) is granted.
LeBeau’s motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 (Docket 1) is dismissed with prejudice.
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3. 	That the Magistrate Judge’s report and recommendation (Docket
29) is adopted in full.
4. 	That respondent’s motion for conditional continuance to file
affidavits (Docket 11) is denied as moot.
5. 	That LeBeau’s miscellaneous motions (Dockets 4, 24, 27) are
denied as moot.
DATED March 21, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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