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United States v. Allen

United States District Court, District of Columbia

March 15, 2017

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

          MEMORANDUM OPINION AND ORDER

          PAUL L. FRIEDMAN United States District Judge

         The matters before the Court are defendant Andre Maurice Allen's four outstanding motions: a Motion for Clarification [Dkt. 405], an Application for a Certificate of Appealability [Dkt. 406], an unopposed Motion for Permission to Appeal In Forma Pauperis [Dkt. 407], and a Motion for Declaratory Judgment [Dkt. 422]. This Court previously denied Allen's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Memorandum Opinion and Order (Aug. 2, 2016) [Dkt. 403]. Allen appealed that decision to the U.S. Court of Appeals for the District of Columbia Circuit, which is holding Allen's appeal in abeyance pending notification from this Court of its decisions regarding Allen's requests to appeal in forma pauperis and for a certificate of appealability. See Order, No. 16-3103 (Sept. 21, 2016) [Dkt. 411]. After careful consideration of the parties' briefs and the relevant legal authorities, the Court concludes that a certificate of appealability is not warranted and therefore declines to issue one. In addition, the Court will deny Allen's motion for leave to appeal in forma pauperis as moot and deny Allen's motions for clarification and for declaratory judgment.[1]

         I. FACTUAL BACKGROUND

         In 2006, a jury convicted Allen on two counts of unlawful distribution of phencyclidine (“PCP”). Judge Richard Roberts sentenced Allen to 210 months of imprisonment. See Judgment (June 5, 2006) at 2 [Dkt. 317]. On March 15, 2016, Allen filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his criminal history score had been miscalculated during sentencing and that he received ineffective assistance of counsel. Section 2255 Motion at 5. The case was then reassigned to this Court following Judge Roberts's retirement. On May 3, 2016, Allen filed a motion for leave to amend his original Section 2255 motion, which this Court granted, raising two new grounds for his ineffective assistance of counsel claim and an additional due process claim. Motion for Leave to Amend at 1-2. On August 2, 2016, this Court denied Allen's Section 2255 motion as time-barred because he failed to meet both the statute-of-limitations provision in 28 U.S.C. § 2255(f) and any of the exceptions to the one-year limitations period. Memorandum Opinion and Order at 2.

         II. DISCUSSION

         A. Application for Certificate of Appealability

         Before a petitioner may appeal a final order in a 28 U.S.C. § 2255 proceeding, he must obtain a certificate of appealability either from this Court or from the court of appeals. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). Where, as here, the Court denies the Section 2255 motion on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability “should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also United States v. Arrington, 763 F.3d 17, 23 (D.C. Cir. 2014). This Court therefore may decline to issue a certificate of appealability only if Allen has failed to make either showing. See Slack v. McDaniel, 529 U.S. at 484-85; United States v. Pollard, 416 F.3d 48, 54 (D.C. Cir. 2005). The Court concludes that no reasonable jurist would find it debatable that this Court was incorrect in its procedural ruling that Allen's claims are time-barred.

         Untimely Section 2255 motions, absent equitable tolling, are time-barred and must be dismissed. United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). 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).

         In its previous opinion, this Court concluded that none of the exceptions listed in 28 U.S.C. § 2255(f)(2)-(4) applied. Memorandum Opinion and Order at 2-3. The appropriate triggering event to start the one-year limitations period therefore was the date on which Allen's original judgment became final. 28 U.S.C. § 2255(f)(1). Allen's judgment became final when his appeal of his conviction and sentence was dismissed by the court of appeals for want of prosecution on December 9, 2008. See Mandate, No. 06-3092 (Dec. 9, 2008) [Dkt. 345]. The one-year limitations period within which he had to file a Section 2255 motion therefore expired on December 9, 2009. Allen filed his Section 2255 motion over six years later on March 15, 2016. Section 2255 Motion at 1. In his motion for clarification and his application for a certificate of appealability, Allen now argues that he meets two of the exceptions under 28 U.S.C. ยง 2255(f) because he only became aware of his base offense level and criminal history score, used to calculate his guidelines ...


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