                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

 v.                                                        Case No. 08-cr-271-RCL-5

 ALLAN J. TANGUAY,

          Defendant.


                                   MEMORANDUM ORDER

       Pro se defendant/petitioner Allan J. Tanguay (“Tanguay”) seeks to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Mot. to Vacate, ECF No. 543. A jury convicted

Tanguay and his three co-defendants of conspiracy to impede the lawful collection of taxes and

mail fraud in May 2010. Tanguay now argues that the United States lacked subject matter

jurisdiction to try his case, his standby and appellate counsel were ineffective, the United States

failed to present sufficient evidence of conspiracy and mail fraud, and his trial was improperly

joined with his co-defendants. For the following reasons, Tanguay’s motion will be dismissed as

untimely under 28 U.S.C. § 2255(f).

I.     BACKGROUND

       The Court of Appeals for the D.C. Circuit detailed the factual background of this case

when consolidating Tanguay and his co-defendants’ direct appeals. See United States v. Hunter,

554 Fed. App’x. 5 (D.C. Cir. 2014). Tanguay worked for American Rights Litigators (“ARL”),

an organization which promoted and sold tax defiance schemes. Id. at 6. ARL co-founder Eddie

Ray Kahn and his deputies Tanguay, Stephen Hunter, and Danny True were charged with

conspiracy and mail fraud. Id. A jury convicted Tanguay and his co-defendants on all counts on

May 26, 2010. Verdict Form, ECF No. 328. On August 30, 2010, this Court sentenced Tanguay,

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Hunter, and True to concurrent terms of 120 months’ imprisonment for mail fraud and 60 months

for conspiracy, to be followed by three years of supervised release. See Hunter, 554 Fed. App’x.

at 7. This Court also ordered Tanguay and his co-defendants to pay fines of $25,000 each. Id.

Tanguay, Hunter, and True appealed, and the D.C. Circuit affirmed the convictions but remanded

for resentencing due to an improper application of the manager–supervisor enhancement under

§ 3B1.1(b) of the United States Sentencing Guidelines. Id. at 11. On remand, this Court imposed

the original sentences based on the seriousness of the crimes, evidenced by the fact that the ARL

scheme had led to the conviction of thirteen other individuals. United States v. Hunter, 809 F.3d

677, 685 (D.C. Cir. 2016). Tanguay and his co-defendants again appealed, and the D.C. Circuit

affirmed the judgment of this Court on January 12, 2016. Id.

       Tanguay then appealed to the United States Supreme Court for review. Tanguay first

stated that the Supreme Court denied his petition for writ of certiorari on June 30, 2016. Mot. To

Vacate 2, ECF No. 543. However, a later section of his motion, the United States’ response to

Tanguay’s motion, and the case record confirm that the Supreme Court denied Tanguay’s

petition on June 20, 2016. Id. at 16; Opp’n 3, ECF No. 544; Tanguay v. United States, 136 S. Ct.

2495 (2016). Tanguay placed the present motion in the prison mailing system on June 28, 2017,

which the district court clerk received on July 10, 2017. Mot. to Vacate 1, 12, ECF No. 543. The

United States filed their opposition to Tanguay’s motion on July 18, 2017. Opp’n 7, ECF No.

544.

II.    LEGAL STANDARD

       Section 2255 permits federal prisoners to collaterally attack an otherwise final sentence if

(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the

court lacked jurisdiction to impose the sentence; (3) the sentence was imposed in excess of the



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maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28

U.S.C. § 2255(a). The burden of proof is on the petitioner to demonstrate his right to relief under

§ 2255 by a preponderance of the evidence. United States v. Basu, 881 F.Supp.2d 1, 4 (D.D.C.

2012). The petitioner must “clear a significantly higher hurdle” when seeking collateral relief

than he would on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982). Indeed, claims

not raised on direct appeal are generally barred outright “unless the defendant shows cause and

prejudice.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714

(2003). Ineffective assistance of counsel claims fall outside the bounds of this rule, however, as

they may be raised in collateral proceedings under § 2255. Id. Still, a district court may deny a

§ 2255 motion without an evidentiary hearing when “the motion and files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); United States v.

Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).

       Section 2255 motions are also subject to a strict one-year time limitation. Id. § 2255(f);

see United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002). The limitation period is triggered

by “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)(1)–(4).




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III.      DISCUSSION

       A. Tanguay’s Motion Is Procedurally Barred by the Statute of Limitations.

          Because Tanguay’s motion does not reference a government-created impediment in

violation of the Constitution or laws, a newly recognized right the Supreme Court made

retroactively applicable to cases on collateral review, or a date when facts supporting the claim

could have been discovered through the exercise of due diligence, the statute of limitations runs

from “the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1). The denial

of a federal prisoner’s petition for writ of certiorari is a final judgment. See United States v. Rice,

727 F. App’x 697, 701 (D.C. Cir. 2018); see also Clay v. United States, 537 U.S. 522, 527–28

(2003).

          Tanguay’s conviction became final on June 20, 2016 when the Supreme Court denied his

petition for writ of certiorari. Therefore, Tanguay must have filed his motion on or before June

20, 2017 to comply with § 2255’s one-year statute of limitations. Motions by pro se prisoners are

considered filed when placed in the prison mailing system. See Blount v. United States, 860 F.3d

732, 741 (D.C. Cir. 2017) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)). Tanguay attested

to placing his motion in the prison mailing system on June 28, 2017. Mot. to Vacate 12, ECF No.

543. Because Tanguay filed his motion eight days after the one-year period, Tanguay’s claims

are barred by the statute of limitations.

       B. Tanguay’s Motion is Not Subject to Equitable Tolling.

          Although Tanguay does not request equitable tolling, the Court addresses this ground

because he is a pro se petitioner. Equitable tolling applies to 28 U.S.C. § 2255 motions. See

United States v. McDade, 699 F.3d 499, 504 (D.C. Cir. 2012). The party making the § 2255

motion has the burden to demonstrate that he is entitled to equitable tolling. See United States v.



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Saro, 252 F.3d 449, 454 (D.C. Cir. 2001). Equitable tolling is only appropriate if a petitioner

demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Head v. Wilson, 792 F.3d 102, 106–

07 (D.C. Cir. 2015) (quoting McQuiggin v. Perkins, 569 U.S. 383, 391 (2013)). Extraordinary

circumstances do not include a “‘garden variety claim of excusable neglect’ or a ‘simple

miscalculation.’” Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir.

2014) (quoting Holland v. Florida, 560 U.S. 631, 651 (2010)).

        Tanguay’s motion did not mention its untimeliness nor offer any explanation for why his

motion was not barred by the statute of limitations. Mot. to Vacate 10–11, ECF No. 543. In fact,

Tanguay was aware of both the date of final judgment and the one-year limitation period, as his

supporting memorandum explicitly stated: “This motion is timely as Petitioner’s conviction

became final at the latest on June 20, 2016 . . . the Petitioner is required to file this motion to

vacate within one year from the time judgment became final.” Mot. to Vacate 15–16, ECF No.

543. Moreover, Tanguay did not indicate any impediments to his timely filing. Thus, Tanguay

has not met his burden to demonstrate that he is entitled to equitable tolling.

    C. Tanguay’s Motion Does Not Present New Evidence to Establish Actual Innocence.

        Tanguay claims that “newly discovered evidence, ineffective assistance of standby

counsel, ineffective assistance of appellate counsel, and prosecutorial misconduct resulting in a

manifest miscarriage of justice which will prove legal and actual innocence in this case

warranting dismissal.” Mot. to Vacate 16, ECF No. 543. This Circuit has recognized “actual

innocence” as an exception to 28 U.S.C. § 2255’s statute of limitations, but only when the

petitioner “persuades the district court that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Adams v.


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Middlebrooks, 640 F. App’x. 1, 3 (D.C. Cir. 2016) (quoting Schlup v. Delo, 513 U.S. 298, 329

(1995)). Actual innocence is considered “factual innocence, not mere legal sufficiency.” Bousley

v. United States, 523 U.S. 614, 623 (1998). Lack of requisite intent does not constitute actual

innocence. See United States v. Merise, No. CR 06-42-1 (JDB), 2020 WL 1930306, at *4

(D.D.C. Apr. 21, 2020) (referencing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

       Tanguay has not presented new evidence demonstrating actual innocence. Tanguay

provided copies of Freedom of Information Act correspondence with the Department of Justice

and Internal Revenue Service. Mot. to Vacate 59–67, ECF No. 543. These documents are

irrelevant to any innocence and only potentially speak to Tanguay’s lack of jurisdiction claim,

which is time-barred under § 2255(f). Similarly, Tanguay’s assertions of insufficient evidence to

prove the required mens rea for the conspiracy and mail fraud charges simply challenge the legal

elements of the crimes for which he was convicted rather than his actual innocence. Id. at 49.

IV.    CONCLUSION

       For the foregoing reasons, Tanguay’s motion to vacate, set aside, or correct his sentence

under 28 U.S.C § 2255 is hereby DENIED.

       It is SO ORDERED.



SIGNED this____day
           26th    of May, 2020.
                                                     /s/Royce   Lamberth
                                                     __________________________________
                                                               Royce C. Lamberth
                                                           United States District Judge




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