Submitted: March 15, 2019
from United States District Court for the District of South
Dakota - Rapid City
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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 sentenced him to
a mandatory minimum of 300 months' imprisonment under 18
U.S.C. § 924(c)(1)(C)(i). He did not appeal.
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
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."
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
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
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
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 ...