Deroo v. United States, No. 12-1632 (8th Cir. 2013)
Annotate this CasePetitioner moved to vacate, set aside, or correct his sentence under 28 U.S.C. 2255, arguing that the resentencing court had relied on an erroneous presentence report, violating his right to due process. The district court denied his motion as time-barred, but issued a certificate of appealability. The court held that the motion was not second or successive to his earlier section 2255 motions because his present claim had not yet arisen. The court held however, that petitioner's delay in pursuing the expungement of his disciplinary actions precluded a finding that he was diligent, rendering his section 2255 motion untimely under section 2255(f)(4). Petitioner also failed to establish the first element of equitable tolling. Accordingly, the court affirmed the judgment.
Court Description: Prisoner case - habeas. Government's argument that this case should have been dismissed as a second or successive habeas is rejected because the present claim had not arisen when the earlier Section 2255 was filed; while it had arisen when Deroo filed a Section 2241 with the Seventh Circuit, a Section 2255 motion is not a second or successive application where the previous petition sought relief under Section 2241; however, Deroo could have discovered the claim that his Presentence Report was erroneous years before he filed this motion, and the district court did not err in concluding it was untimely; Deroo failed to establish the elements of equitable tolling.
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