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Chachanko v. United States

United States Court of Appeals, Eighth Circuit

August 26, 2019

Yuri Chachanko Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: March 15, 2019

          Appeal from United States District Court for the District of South Dakota - Rapid City

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         In July 2008, Yuri Chachanko pled guilty to using and carrying a firearm during a violent felony, in violation of 18 U.S.C. § 924(c)(1) and (2). The district court[1] sentenced him to a mandatory minimum of 300 months' imprisonment under 18 U.S.C. § 924(c)(1)(C)(i). He did not appeal.

         In April 2017, he submitted a pro se letter, challenging his sentence based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In July 2017, through appointed counsel, he moved for § 2255 relief under Johnson. The district court denied the motion as untimely but issued a certificate of appealability under 28 U.S.C. §2253(c). He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         Chachanko resided in a special housing unit ("SHU") from March 2015 to March 2017. During that time, on June 26, 2015, the Supreme Court decided the Johnson case. In April 2016, believing Johnson invalidated his sentence, Chachanko wrote his South Dakota Federal Public Defender ("FPD") asking for "some information and paperwork so I could file before the June deadline." The FPD wrote back on May 2, 2016, stating that it was reviewing potential Johnson claims, and "[i]f we conclude that you are eligible, we will file an appropriate motion to reduce your sentence within one year of the Johnson decision which is the deadline to file. If we find that you are not, we will let you know."

         By letter dated June 15, 2016, the FPD informed Chachanko that he was not eligible for Johnson relief "because recent Eighth Circuit case law has held that a Hobbs Act robbery is a crime of violence under the force clause of 924(c)." The letter stated that the FPD would "not file any motion seeking to reduce your sentence as a result." The letter included instructions "on how to file your own 2255" if "you disagree with our conclusion."

         For unknown reasons, Chachanko did not receive the June 2016 letter; it was returned to the FPD unopened. He finally spoke with an FPD attorney around August 24, 2016. The attorney informed him that the June letter had been returned unopened, and the FPD had not filed a § 2255 petition on his behalf.

         In April 2017- a month after his release from the SHU and almost a year after the statute of limitations for a Johnson claim expired-Chachanko filed a pro se letter seeking § 2255 relief. In July 2017, through appointed counsel, he filed a § 2255 motion. The district court denied the motion as untimely, ruling "Chachanko has failed to show that he diligently pursued his rights." It found that he "did nothing between June 27, 2016, and August 24, 2016, such as contact the court, to check on the status of his claim," and that he did not take "any steps . . . to pursue his claim in the 233 days-or more than seven months-that passed between August 24, 2016, when Chachanko first learned that the FPD had not filed a motion to reduce his sentence, and April 13, 2017, when Chachanko filed his pro se motion to reduce his sentence."

         II.

         Chachanko concedes his "petition was not timely." But he asserts the court should consider the merits of his claim based on equitable tolling. This court reviews "a denial of equitable tolling de novo," and "underlying fact findings for clear error." English v. United States, 840 F.3d 957, 958 (8th Cir. 2016). Equitable tolling is an "extraordinary" remedy that "affords the otherwise time-barred petitioner an exceedingly narrow window of relief." Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001). "A petitioner is entitled to equitable tolling only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and ...


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