United States District Court, District of Columbia
KESSLER UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Albert Tabi's Pro
Se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
Or Correct Sentence [Dkt. No. 36]. Upon consideration of the
Motion, the entire record herein, and for the reasons set
forth below, the Motion shall be denied.
1998, a jury convicted Mr. Tabi of making false statements in
his passport application. On October 1, 1998, this Court
sentenced Mr. Tabi to a three-year period of probation.
Although Mr. Tabi initially filed a notice of appeal, the
Court of Appeals granted his motion to dismiss the appeal on
March 25, 1999. The case remained closed for over seven years
until Mr. Tabi filed the instant Motion to Vacate, Set Aside,
Or Correct Sentence on April 11, 2006.
28 U.S.C. § 2255 enables individuals in custody to move
a court to vacate, set aside, or correct their sentence, the
motion must be timely. Absent equitable tolling, Section 2255
motions filed outside of the statute of limitations will be
dismissed. See United States v. Cicero, 214 F.3d
199, 202 (D.C. Cir. 2000). The 1-year statute of limitations
runs from the latest of-
date on which the judgment of conviction becomes final;
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;
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
date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
U.S.C. § 2255(f).
case, Mr. Tabi's conviction became final when the Court
of Appeals granted his motion to dismiss his appeal on March
25, 1999. See United States v. Williams, 630
F.Supp.2d 28, 31 (D.D.C. 2009) ("In the context of
habeas review, a conviction becomes final when the
availability of appeal is exhausted."). Therefore, Mr.
Tabi's period within which to file a Section 2255 motion
expired on March 25, 2000. Mr. Tabi has not alleged that any
of the exceptions listed in 28 U.S.C. § 2255(f)(2)-(4)
applies here. Specifically, Mr. Tabi has not suggested that
he faced a government-imposed impediment to making the
Motion, that the Supreme Court recognized a new and
retroactively-applicable right, or that the facts supporting
his claim did not come to light until the year prior to
filing his Motion. Because Mr. Tabi did not seek relief until
April 11, 2006, the Motion is not timely.
a court may still consider a time-barred Section 2255 motion
on the merits if a defendant demonstrates: (1) grounds for
eguitable tolling, or (2) a credible showing of actual
innocence. United States v. Allen, No. 03-0557-1
(PLF), 2016 WL 4099037, at *2 (D.D.C. Aug. 2, 2016). Mr.
Tabi, however, has not alleged that either doctrine should
apply here. See Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005) (recognizing that equitable tolling requires a
defendant to establish: "(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way"); McQuiggin v.
Perkins, 133 S.Ct. 1924, 1928 (2013) (noting that to
establish actual innocence sufficient to overcome the statute
of limitations, a defendant must show that "in light of
 new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt").
Because Mr. Tabi has not made the requisite showings to
support the application of these doctrines, the Court will
not alter its determination that the Motion should be denied
Court shall deny the Motion for the additional reason that
Mr. Tabi has not demonstrated that he was in custody at the
time he filed the Motion. See 28 U.S.C. § 2255
(granting the right to challenge a sentence to
"prisoner[s] in custody under sentence of a
court"); Williams, 630 F.Supp.2d at 30 (finding
that prisoner who completed his sentence prior to filing a
Section 2255 motion was not "in custody" for
purposes of the statute). The Court sentenced Mr. Tabi to a
three-year period of probation, a sentence that presumably
expired during the 7 years that ...