Andrews v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
*
WILLIAM C. ANDREWS, * CIV 21-5044
* CR 18-50045
Movant, *
*
-vs- * ORDER
*
UNITED STATES OF AMERICA, *
*
Respondent. *
*
On July 23, 2021, William Andrews filed a pro se Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. Andrews alleges that he received ineffective assistance of
counsel during his 2018 trial where he was found guilty of possession of a firearm by a prohibited
person.
The Eighth Circuit affirmed Andrews's conviction and judgment on July 3, 2019, and the
Eighth Circuit's Mandate was issued on September 3, 2019. (Docs. 97 and 101 in CR 18-50045.)
Section 2255 motions are subject to a one-year statute of limitations, running from the latest
of
(1)the date on which the judgment of conviction becomes final;
(2)the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action;
(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; or
(4)the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
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Andrews filed this motion to vacate more than one year from the time his conviction became
final. In his motion, Andrews explains that he was unable to timely file the motion because he"was
in transport from 6-1-2020 to 2-1-2021 and did not have access to any legal paper work." (Doc. 1,
p. 4.) In addition, due to the COVID-19 pandemic and "nation wide shut downs," he was not able
to access the law library or contact his lawyer. {Id.)
AEDPA'sone-year statute oflimitations is subject to equitable tolling but only in exceptional
circumstances. The Eighth Circuit has held that equitable tolling is appropriate "only when
extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.
Further, equitable tolling maybe appropriate when conduct ofthe defendant has lulled the plaintiff
into inaction." Jihadv. Hvass,261 V.hd'&Q'i, 805(8th Cir. 2001),quoting A'rewteer v. 231
F.3d 460,463(8th Cir. 2000).
The government will be directed to address whether the statute of limitations is subject to
equitable tolling in Andrews's case. Accordingly,
IT IS ORDERED:
(1) That, within twenty days after service ofthis Order,the government shall file
a pleading addressing the issue ofequitable tolling ofthe one-year statute of
limitations in this case.
(2) That Movant, William Andrews, may submit a reply to the government's
pleading within twenty days after receipt.
SDated this ^ day of August, 2021.
BY THE COURT:
^-'Lawrence L. Piersol
United States District Judge
ATTEST:
MATT^^W^ELEI^CLgRK
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