Lynch v. USA

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that petitioner's Motion to Vacate, Set Aside or Correct Sentence brought pursuant to 28 U.S.C. § 2255 (Docket No. 1 ) is DENIED AND DISMISSED as time-barred. 28 U.S.C. § 2255(f); Rule 4(b), Rules Governing Section 2255 Proceedings in the United States District Courts. A separate order of dismissal will be filed herewith. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. See 28 U.S.C. § 2253. IT IS FURTHER ORDERED that petitioner's Motion for Leave to Proceed in Forma Pauperis (Docket No. 2 ) is DENIED as moot. Signed by District Judge E. Richard Webber on 10/20/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRENDAN SEAN LYNCH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16CV1525 ERW

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s response to the order to show cause.1
Having carefully reviewed petitioner’s response, the Court concludes that his arguments do not
warrant the application of equitable tolling in this case, and that the Motion to Vacate, Set Aside,
or Correct Sentence (Docket No. 1) must therefore be dismissed as time-barred.2
On March 26, 2014, petitioner pled guilty to conspiracy to distribute a controlled
substance and conspiracy to commit money laundering. On June 25, 2014, the Court sentenced
petitioner to a 100-month term of imprisonment. He did not appeal. In the instant motion,
petitioner argues solely that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), he no
longer qualifies as a career offender because his prior convictions are no longer grounds for
enhancement under U.S.S.G. § 4B1.1(a). The Supreme Court decided Johnson on June 26,
2015. Petitioner placed the instant § 2255 motion in the prison mail system on September 21,
2016.
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On September 29, 2016, the Court ordered petitioner to show cause as to why the Court should
not dismiss the instant petition for writ of habeas corpus as time-barred.
2 The Court

will also deny as moot petitioner’s Motion for Leave to Proceed in Forma Pauperis
(Docket No. 2), because no filing fee is required.
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Section 2255(f) of 28 U.S.C. provides, in relevant part:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of-...
(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
...
In his response to the Order to Show Cause, petitioner asserts that he should be excused
from the one-year statute of limitations because he is proceeding pro se and is indigent, he has no
access to a law library, he was unaware of the time limitation for filing the instant motion, he has
been in a “lockdown” environment since February 11, 2015, he may be able to seek relief based
upon a case which is currently pending in the United States Supreme Court, and he had a cast on
his arm until May 4, 2016 (or June 4, 2016, depending on how petitioner’s handwriting is
interpreted).
AGenerally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.@ Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The United
States Court of Appeals for the Eighth Circuit has held that equitable tolling is proper in cases
such as the one at bar only when: (1) extraordinary circumstances beyond the prisoner’s control
make it impossible to file a petition on time, or (2) when the conduct of the respondent has lulled
the petitioner into inaction. Jihad v. Hvass, 267 F.3d 803, 805-06 (8th Cir. 2001). Petitioner
fails to meet the foregoing standards.

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Equitable tolling is Aan exceedingly narrow window of relief.@ Id.at 805. APro se status,
lack of legal knowledge or legal resources, confusion about or miscalculations of the limitations
period, or the failure to recognize the legal ramifications of actions taken in prior post-conviction
proceedings are inadequate to warrant equitable tolling.@ Shoemate v. Norris, 390 F.3d 595, 598
(8th Cir. 2004); see also Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (“Even in the
case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable
tolling has not been warranted.”).
Lockdowns generally do not constitute extraordinary circumstances warranting equitable
tolling, Lindo v. Lefever, 193 F. Supp. 2d 659, 663 (E.D. N.Y. 2002), but equitable tolling can be
justified “when some fault on the part of a defendant has caused a plaintiff to be late in filing, or
when other circumstances, external to the plaintiff and not attributable to his actions, are
responsible for the delay.” Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002). In the case at
bar, however, petitioner provides no information indicating he was improperly placed in a
lockdown environment, or that such placement was due to anything other than his own
misbehavior. In addition, even though petitioner alleges that he has been in lockdown since
February 11, 2015, he has managed to file not only the instant Motion to Vacate, but other
documents with the Court as well. Accordingly, it cannot be said that being in a lockdown
environment was beyond petitioner’s control, see Sontoya v. Minnesota, 2015 WL 5472740 (D.
Minn. September 17, 2015), or even that it prevented him from filing pleadings in this Court. It
therefore cannot warrant the application of equitable tolling in this case.
Finally, the potential that petitioner may be able to seek relief based upon a case that is
not yet decided is irrelevant to the question of whether equitable tolling is warranted in the
instant case, and the fact that petitioner’s arm was in a cast until May 4, 2016 (or even June 4,
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2016) does not warrant the application of equitable tolling. Petitioner had until June 26, 2016 to
file the instant Motion to Vacate.
Because the instant Motion to Vacate is untimely and because petitioner has presented no
circumstances warranting the application of equitable tolling, the Court concludes that the
Motion is time-barred under 28 U.S.C. § 2255(f), and will therefore dismiss it pursuant to Rule
4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s Motion to Vacate, Set Aside or Correct
Sentence brought pursuant to 28 U.S.C. § 2255 (Docket No. 1) is DENIED AND DISMISSED
as time-barred. 28 U.S.C. § 2255(f); Rule 4(b), Rules Governing Section 2255 Proceedings in
the United States District Courts. A separate order of dismissal will be filed herewith.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of
Appealability. See 28 U.S.C. § 2253.
IT IS FURTHER ORDERED that petitioner’s Motion for Leave to Proceed in Forma
Pauperis (Docket No. 2) is DENIED as moot.
Dated this 20th day of October, 2016.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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