USA v. Rowland

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BENTON ROWLAND,
Defendant.
CR. 16-50138-JLV
ORDER
On May 15, 2017, Defendant Benton Rowland was sentenced to 240
months custody for his conviction of abusive sexual contact in violation of
18 U.S.C. §§ 2244(a)(5) and 1153. 	(Docket 264). 	On March 25, 2022, the
United States Court of Appeals for the Eighth Circuit denied defendant’s direct
appeal and affirmed the sentence imposed. 	(Docket 277). 	The judgment of
the Eighth Circuit was entered the same day. 	(Docket 278). 	The mandate of
the Eighth Circuit was entered on May 24, 2022. 	(Docket 279).
On January 18, 2023, Mr. Rowland filed a motion for extension of time to
file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. 	(Docket
280). 	Mr. Rowland requests an extension of 90 days to file his petition “to
research his recent discovery” and because he “has limited access to the law
library as it contains 10-15 computers to facilitate over 1100 inmates here at
FCI Sandstone” and his computer time is limited to two-hour sessions. 	Id. at
pp. 1-2. 	Mr. Rowland’s motion represents he believes he has a meritorious
claim as “an [a]ctual[] [i]nnocent defendant.” 	Id. at p. 1.
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Equitable tolling of the one-year statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132
(1996), is available to a § 2255 petitioner. 	United States v. Martin, 408 F.3d
1089, 1092 (8th Cir. 2005). 	“Equitable tolling should only apply where the
petitioner or movant has demonstrated diligence in pursuing the matter.” 	Id.
at 1095. 	“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) (internal
quotation marks omitted; citing Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
“[A] federal court lacks jurisdiction to consider the timeliness of a § 2255
petition until a petition is actually filed.” 	Green v. United States, 260 F.3d 78,
82 (2d Cir. 2001) (citing United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000)).
“Prior to an actual filing, there is no case or controversy to be heard, and any
opinion we were to render on the timeliness issue would be merely advisory.”
Id. (citing Leon, 203 F.3d at 164; internal quotation marks omitted).
“It is well settled that pro se litigants generally are entitled to a liberal
construction of their pleadings, which should be read to raise the strongest
arguments that they suggest.” 	Id. at 83 (internal quotation marks and citation
omitted; referencing Haines v. Kerner, 404 U.S. 519, 520 (1972) (The
allegations in a pro se complaint are “h[e]ld to less stringent standards than
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formal pleadings drafted by lawyers”); brackets and other references omitted).
“Where a motion, nominally seeking an extension of time, contains allegations
sufficient to support a claim under section 2255, a district court is empowered,
and in some instances may be required, under Haines to treat that motion as a
substantive motion for relief under section 2255.” 	Id. 	“[If[ the motion
contains allegations supporting a claim for relief under section 2255 . . . the
district court should construe it as such, and then decide whether the motion
is timely.” 	Id. 	“If it does not, the district court has no jurisdiction under Leon
to consider the motion.” 	Id. 	If the motion for an extension of time to file a
§ 2255 petition does not contain a single reference to any cognizable claim
under § 2255, the court does not err by dismissing the motion. 	Id. at 84.
In this case, Mr. Rowland’s motion for an extension offers an allegation of
the claim for relief which he intends to assert under § 2255, that is, actual
innocence. 	(Docket 280 at p. 1). 	The court concludes the motion could be
liberally construed to be a § 2255 motion. 	Green, 260 F.3d at 83. 	Because
the court has jurisdiction to consider Mr. Rowland’s motion, the court finds the
motion is timely as it was filed 7 months and 25 days after the mandate of the
Eighth Circuit. 	28 U.S.C. § 2255(f)(1) (“A 1-year period of limitation shall
apply to a motion under this section. 	The limitation period shall run from . . .
the date on which the judgment of conviction becomes final[.]”. 	Accordingly, it
is
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ORDERED that defendant’s motion (Docket 280) is granted.
IT IS FURTHER ORDERED that on or before June 26, 2023, Mr.
Rowland shall file an amended application on the form available from the Clerk
of Court which complies with Rule 2 of the Rules Governing Section 2255
Proceedings.
IT IS FURTHER ORDERED that Mr. Rowland’s motion (Docket 280) and
a copy of this order shall be opened by the Clerk of Court as a new § 2255 case
captioned Benton Rowland, Petitioner, v. United States, Respondent, and all
further pleadings shall be filed in that case.
IT IS FURTHER ORDERED that the Clerk of Court shall provide a copy of
this order, together with a copy of a § 2255 application, to Mr. Rowland.
Dated February 23, 2023.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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