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United States v. Allen

United States District Court, District of Columbia

August 2, 2016

UNITED STATES OF AMERICA,
v.
ANDRE MAURICE ALLEN, Defendant. Civil Action No. 16-0499 (PLF)

          ANDRE MAURICE ALLEN, Defendant, Pro Se.

          ANDRE MAURICE ALLEN, Defendant, represented by James W. Beane, Jr..

          FRANCISCO BRITTINGHAM, Defendant, represented by Peter Richard Maignan, THE LAW OFFICE OF HERBERT A. CALLIHAN, PLLC.

          USA, Plaintiff, represented by Barry Wiegand, U.S. ATTORNEY'S OFFICE, Emile Christopher Thompson, U.S. ATTORNEY'S OFFICE & Thomas P. Swanton, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA.

          MEMORANDUM OPINION AND ORDER

          PAUL L. FRIEDMAN, District Judge.

         In 2006, a jury convicted defendant Andre Maurice Allen on two counts of unlawful distribution of phencyclidine ("PCP"). Judge Richard Roberts sentenced defendant to 210 months of imprisonment. The defendant filed a notice of appeal, but his appeal was dismissed for want of prosecution on December 9, 2008. See Mandate of D.C. Circuit Court of Appeals [Dkt. No. 345]. On February 3, 2016, Judge Roberts denied defendant's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines [Dkt. No. 391]. On March 15, 2016, defendant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his criminal history score had been miscalculated during sentencing and that he received ineffective assistance of counsel. Defendant's Motion to Vacate, Set Aside, or Correct his Sentence at 5 [Dkt. No. 395]. On May 3, 2016, the defendant filed a motion for leave to amend his original Section 2255 motion, alleging two new grounds for his ineffective assistance of counsel claim and an additional due process claim. Defendant's Motion for Leave to Amend at 1-2 [Dkt. No. 400]. And in his reply brief responding to the government's opposition, defendant raised, for the first time, an actual innocence argument. Defendant's Reply to the Government's Opposition at 3-12. After careful consideration of the parties' briefs and the relevant legal authorities, the Court will deny defendant's motion as time-barred.

         II. DISCUSSION

         28 U.S.C. § 2255 allows a prisoner in custody to "move the court which imposed the sentence to vacate, set aside, or correct the sentence." But the Court must first determine whether the motion is timely, because the statute imposes a one-year statute of limitations on such motions. See United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). Untimely motions, absent equitable tolling, are time-barred and must be dismissed. See id. at 205. The one-year limitations period runs 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).

         Defendant's conviction became final when his appeal was dismissed for want of prosecution on December 9, 2008. Because none of the exceptions listed in 28 U.S.C. § 2255(f)(2)-(4) applies, defendant's one-year limitations period ...


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