Bonestroo v. United States of America
ORDER adopting 10 Amended Report and Recommendation; dismissing 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28:2255; overruling 12 Objection to Amended Report and Recommendation. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 4/28/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
ORDER ADOPTING AMENDED
REPORT AND RECOMMENDATION
AND DISMISSING MOTION
Movant, Ronald Bonestroo, filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket 1. The matter was assigned to
United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate
Judge Duffy recommends that Bonestroo’s motion be dismissed. Docket 10.
Magistrate Judge Duffy recommends dismissal because Bonestroo’s
motion is time-barred under the 1-year statute of limitation in 28 U.S.C.
§ 2255(f). Id. Magistrate Judge Duffy found that equitable tolling did not apply.
Id. Bonestroo argues that his filing limitation should be tolled because the
government prevented him from filing a collateral challenge to his conviction
when it appealed the district court’s grant of his motion for acquittal. Docket 9.
Magistrate Judge Duffy rejected this argument because Bonestroo's statute of
limitations did not begin to run until the Supreme Court denied his petition for
a writ of certiorari. Docket 10 at 3 and 5.
Bonestroo objects to the report and recommendation. Docket 12. He
admits that he did not file his motion with the 1-year statute of limitation, but
argues that he is entitled to equitable tolling. Id. He claims that his attorney’s
decision to file for a writ of certiorari instead of appealing his conviction
deprived him of the right to appeal his sentence and to attack it collaterally. Id.
at 2-3. Bonestroo also claims that his attorney’s failure to move for a new trial
was deficient. Id. at 3.
“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, 735 F.3d 812, 815 (8th Cir. 2013)
(quoting Holland v. Florida, 560 U.S. 631 (2010). Magistrate Judge Duffy found
that Bonestroo did not pursue his rights diligently, and his objection does not
present an argument that he did. Bonestroo’s claims concerning his attorney’s
deficiencies do not constitute an “extraordinary circumstance” that prevented
him from timely filing his motion. These allegedly deficient actions were taken
before Bonestroo’s writ of certiorari was denied and therefore before his 1-year
statute of limitation began to run. For these reasons, Bonestroo is not entitled
to equitable tolling.
“A district court may deny an evidentiary hearing where (1) accepting the
petitioner's allegations as true, the petitioner is not entitled to relief, or (2) ‘the
allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). Here, an
evidentiary hearing is not required because the record contains the applicable
dates of Bonestroo’s filings.
Before denial of a § 2255 motion may be appealed, a movant must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A 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). The court
finds that Bonestroo has not made a substantial showing that the district
court’s assessments of his claims are debatable or wrong. Consequently, a
certificate of appealability is not issued.
Thus, it is ORDERED
1. Bonestroo’s objections to the report and recommendation (Docket 12)
2. The amended report and recommendation (Docket 10) is adopted in
full. Bonestroo’s motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (Docket 1) is dismissed.
3. A certificate of appealability is not issued.
Dated April 28, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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