United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge
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.
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.
Application for Certificate of Appealability
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
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
(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
(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).
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.
§ 2255(f) because he only became aware of his base
offense level and criminal history score, used to calculate
his guidelines ...