United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
E. SCHREIER UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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 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.
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.
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 differently, or that a question
raised by that claim deserves further proceedings.
Consequently, a certificate of appealability is denied.
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. ...