Estensen v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus; granting 9 Motion to Dismiss for Failure to State a Claim. Certificate of Appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 8/16/16. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LESTER ESTENSEN,
Petitioner,
vs.
4:16-CV-4064-KES
MEMORANDUM OPINION AND
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
UNITED STATES OF AMERICA,
Respondent.
Petitioner, Lester Estensen, moves to correct his sentence because of a
possible Johnson claim under 28 U.S.C. § 2255. He also raises an ineffective
assistance of counsel claim. Respondent, United States of America, opposes the
motion and moves to dismiss Estensen’s motion. Docket 9. For the following
reasons, the court denies Estensen’s petition.
BACKGROUND
Estensen entered a plea of guilty to one count of possession with intent
to distribute a controlled substance. In his presentence report, the total offense
level was calculated to be 33, and no Chapter Four enhancements were
applied. PSR at ¶ 27. On August 26, 2013, Estensen was sentenced to 240
months in custody. His sentence was within his advisory guideline range.
Estensen did not appeal and he did not file a petition for habeas relief under
28 U.S.C. § 2255.
A second amended judgment was filed on June 2, 2015, reducing
Estensen’s sentence under 18 U.S.C. § 3582(c)(2) to 94 months in custody.
Estensen now moves to correct his sentence because of a new rule of
constitutional law that was announced by the United States Supreme Court in
Johnson v. United States, 135 S. Ct. 2551 (2015). Additionally, he seeks habeas
relief arguing that his counsel was ineffective. He also moves for appointment
of counsel. (Docket 5). By standing order of the Chief Judge for the District of
South Dakota, the Federal Public Defender was appointed to represent
Estensen. The Federal Public Defender filed a notice of intent not to
supplement Estensen’s pro se filing. The United States moves to dismiss the
motion to correct his sentence for failure to state a claim. The United States
also moves this court to deny Estensen’s claim for relief based on ineffective
assistance of counsel because it is time barred.
DISCUSSION
Johnson addressed the application of the “residual clause” found in the
Armed Career Criminal Act, at 18 U.S.C. § 924(e)(2)(B)(ii). But Estensen was
not convicted under the Armed Career Criminal Act. Additionally, no
enhancements were applied to him that included residual-clause language.
Thus, he has no claim that Johnson somehow invalidated his guidelines
application. Because there is no connection between Johnson and Estensen’s
convictions, Estensen’s motion for a sentence reduction is denied. And
Estensen’s motion for appointment of counsel is denied as moot because the
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Federal Public Defender’s Office for the District of South Dakota was appointed
previously by standing order of the Chief Judge of the District of South Dakota.
Estensen also contends that his trial counsel was ineffective. The
judgment of conviction was entered on August 26, 2013. Estensen did not raise
his claim of ineffective assistance of counsel until May 23, 2016. A 1-year
period of limitations applies to all motions for relief under § 2255. See 28
U.S.C. § 2255(f). Because Estensen waited over 2 ½ years before filing his
habeas petition that alleges ineffective assistance of counsel, it is denied as
time barred.
CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2255 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(2). A “substantial
showing” is one that demonstrates “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing
is a showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). The court finds that Estensen has
not made a substantial showing that his claim is debatable among reasonable
jurists, that another court could resolve the issues raised in that claim
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differently, or that a question raised by that claim deserves further
proceedings. Consequently, a certificate of appealability is denied.
CONCLUSION
Estensen has not demonstrated that he is entitled to a sentence
reduction under Johnson. His claim that his counsel was ineffective is time
barred. His request for a court appointed attorney is denied as moot. And the
court denies a certificate of appealability. Thus, it is
ORDERED that Estensen’s Motion to Correct his sentence is denied
(Docket 1).
IT IS FURTHER ORDERED that Estensen’s motion for an attorney
(Docket 5) is denied as moot.
IT IS FURTHER ORDERED that the United States’ motion to dismiss
(Docket 9) is granted.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
Dated August 16, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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