                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      v.                            )                 Criminal Action No. 03-0557 (PLF)
                                    )                 Civil Action No. 16-0499 (PLF)
ANDRE MAURICE ALLEN,                )
                                    )
      Defendant.                    )
____________________________________)


                           MEMORANDUM OPINION AND ORDER

               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



       1
             The documents reviewed in connection with the pending motions include:
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
                                 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




Custody (“Section 2255 Motion”) [Dkt. 395]; Motion for Leave to Amend 2255 (“Motion for
Leave to Amend”) [Dkt. 400]; Defendant’s Reply to the Government’s Opposition to the Pro Se
Motion Pursuant to 28 U.S.C. § 2255 (“Defendant’s Reply”) [Dkt. 402]; Motion for Clarification
[Dkt. 405]; Application for a Certificate of Appealability (“Application”)
[Dkt. 406]; Motion for Permission to Appeal In Forma Pauperis [Dkt. 407]; United States’
Opposition to Defendant’s Motion for Clarification and Application for a Certificate of
Appealability [Dkt. 415]; The Plaintiff’s Response to the Government’s Opposition to My
Motion for Clarification and Certificate of Appealability (“Defendant’s Response”) [Dkt. 417];
and Motion for Declaratory Judgment [Dkt. 422].


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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




                                                  3
               (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. § 2255(f) because he only became aware of his base offense level and criminal history

score, used to calculate his guidelines sentencing range, in 2016 when Judge Roberts denied his

request for a sentence reduction under 18 U.S.C. § 3582(c)(2) in an unrelated order. See Motion

for Clarification at 3; Application at 3; Defendant’s Response at 13; see also Memorandum

Order (Feb. 3, 2016) [Dkt. 391].

               With respect to 28 U.S.C. § 2255(f)(2), Allen suggests — although he does not

state so explicitly — that Judge Roberts’s failure to announce his base offense level and criminal

history score at his sentencing hearing was “governmental action in violation of the Constitution

or laws of the United States,” 28 U.S.C. § 2255(f)(2), that prevented him from filing a Section

2255 motion in a timely fashion. See Application at 3; Motion for Clarification at 3. Even

assuming that a judge’s decision may constitute a “governmental action” under Section


                                                 4
2255(f)(2), this argument lacks merit. According to the transcript of the sentencing hearing,

Judge Roberts explicitly addressed Allen’s objections to the presentence investigation report and

made factual findings concerning the quantity of PCP for which he found Allen responsible —

10,000 grams or ten kilograms — and his role in the offense to determine Allen’s base offense

level. See Sentencing Tr. (May 26, 2006) at 22-23, 26. Judge Roberts also stated that Allen’s

applicable guidelines sentencing range was 292 to 360 months, or 24 to 30 years. Id. at 48-49. 2

In his statements at sentencing, Judge Roberts did not announce the final offense level resulting

from his factual findings or Allen’s criminal history score. As noted, however, he stated several

times the resulting guidelines sentencing range. Judge Roberts also stated — repeatedly — that

he thought a sentence within that range was too high and his reasons for varying below the

guidelines sentencing range under the sentencing factors set forth in 18 U.S.C. § 3553(a). See

Sentencing Tr. at 47-49, 51. Judge Roberts ultimately sentenced Allen to 210 months in prison,

82 months less than what he found to be the low end of the applicable guidelines sentencing

range.

               Moreover, Allen was aware of the guidelines sentencing range, criminal history

score, and the prior convictions used to calculate the criminal history score from having

reviewed the Presentence Investigation Report (“PSR”). He signed and filed a Receipt and

Acknowledgement Form, acknowledging his receipt and review of the PSR and challenging the

offense level calculated by the Probation Office. See Receipt and Acknowledgement of

Presentence Investigation Report at 2 [Dkt. 318]. Through counsel, Allen also filed a sentencing




         2
               At sentencing, Judge Roberts seemed to equate a guidelines sentencing range of
292 to 360 months with 24 to 30 years. Sentencing Tr. at 49. Twenty-four years is actually 288
months, not 292 months. That minor misstatement by Judge Roberts, however, does not affect
Allen’s substantive rights.


                                                5
memorandum in which he challenged the quantity of PCP for which he was allegedly responsible

and the offense level increases included in the PSR for obstruction of justice and for his role in

the conspiracy. See Memorandum in Aid of Sentencing at 13-15 [Dkt. 307-2]. Indeed, Judge

Roberts spent considerable time at the sentencing hearing explaining why he disagreed with the

Probation Office and the government — and agreed with Allen that an increase for obstruction of

justice was inappropriate. See Sentencing Tr. at 23-25.

               Allen’s argument regarding the exception under 28 U.S.C. § 2255(f)(4) fares no

better. Allen argues that the facts underlying his claim were not discoverable through due

diligence until 2016 when Judge Roberts mentioned Allen’s base offense level and criminal

history score in an unrelated order denying his request for a sentence reduction under 18 U.S.C.

§ 3582(c). Defendant’s Response at 13. As just discussed, however, Allen’s base offense level

and criminal history score were easily discernible from the PSR, which Allen acknowledged he

had received, and from Judge Roberts’s statements at sentencing in Allen’s presence.

               Based on the record, this Court concludes that no reasonable jurist would find it

debatable that Judge Roberts’s conduct constituted unconstitutional governmental action that

prevented Allen from filing a Section 2255 motion or that Allen did not know or could not have

discovered the facts supporting his claims through due diligence until six years after he was

sentenced. See 18 U.S.C. § 2255(f)(2), (f)(4). For these reasons and because Allen filed his

Section 2255 motion six years after the limitations period had expired, see supra at 4, the Court

again concludes that Allen has not met the requirements under Section 2255(f).

               As the Court noted in its August 2, 2016 Memorandum Opinion and Order,

however, there are two potential avenues through which a time-barred Section 2255 motion can

be considered on the merits: equitable tolling or a credible showing of actual innocence.




                                                 6
Memorandum Opinion and Order at 3. For the reasons stated in that Opinion, the Court

concluded that Allen had not made a showing under either theory. See id. at 3-5. Nothing in

Allen’s more recent filings undermines that conclusion. With regard to equitable tolling, Allen

has not established that he was “pursuing his rights diligently” and was prevented by

“extraordinary circumstances” from filing the motion. Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005). Nor has he established a credible showing of actual innocence — “that, in light of [] new

evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (quoting Schlup v. Delo, 513 U.S.

298, 329 (1995)). His claims were based on evidence that was available to him at the time of

trial, as Allen has acknowledged. See Defendant’s Reply at 8.

               In sum, no reasonable jurist would find debatable this Court’s procedural ruling

that Allen’s Section 2255 motion was time-barred under 28 U.S.C. § 2255(f) and that he did not

meet the requirements for equitable tolling or a credible showing of actual innocence. In light of

this conclusion, the Court need not reach the issue of whether jurists of reason would find it

debatable whether Allen’s Section 2255 motion states a valid claim of the denial of a

constitutional right. See Slack v. McDaniel, 529 U.S. at 484-85; United States v. Pollard, 416

F.3d at 54. The Court therefore will deny Allen’s application for a certificate of appealability.


                     B. Motions for Clarification and Declaratory Judgment

               In his motion for clarification, Allen asks this Court to rule on the merits of his

constitutional claims. See Motion for Clarification at 2-4. This Court cannot reach the merits of

his constitutional claims, however, because — as the Court has stated here and in its previous

Opinion — Allen’s Section 2255 motion is time-barred. See supra at 3-5; Memorandum

Opinion and Order at 2-3.



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               Allen also recently filed a motion for declaratory judgment on his motion for

clarification. See Motion for Declaratory Judgment at 1. Allen’s motion for declaratory

judgment is the functional equivalent of a request that the Court rule on his Section 2255 motion.

See Zaidi v. U.S. Sentencing Comm’n, 144 F. Supp. 3d 1, 2 (D.D.C. 2015). Because Allen’s

motion for declaratory judgment ultimately seeks resolution of the merits of his time-barred

Section 2255 motion, the Court will deny his motion for declaratory judgment.


                             C. Request for an Evidentiary Hearing

               The Court will also deny Allen’s request for an evidentiary hearing. See Motion

for Declaratory Judgment at 1; Defendant’s Response at 2, 4. Allen requests an evidentiary

hearing on the merits of his Section 2255 motion and the actual innocence exception to the time

bar in 28 U.S.C. § 2255(f). See Motion for Declaratory Judgment at 1; Defendant’s Response

at 2. With respect to the actual innocence exception to the time bar, an evidentiary hearing may

be appropriate for a court to “assess the probative force of the newly presented evidence in

connection with the evidence of guilt adduced at trial.” Schlup v. Delo, 513 U.S. at 331-32. As

previously noted, however, Allen has not proffered any new evidence here that was unavailable

to him at the time of his sentencing. See supra at 4-6; Memorandum Opinion and Order at 4. An

evidentiary hearing therefore is not warranted. In addition, the Court cannot reach the merits of

Allen’s Section 2255 motion because it is time-barred, and it need not hold an evidentiary

hearing before denying the motion on procedural grounds. See United States v. Pollard, 959

F.2d 1011, 1030 (D.C. Cir. 1992) (citing 28 U.S.C. § 2255(b)).




                                                8
                                        III. CONCLUSION

                For the foregoing reasons, it is hereby

                ORDERED that defendant’s application for a certificate of appealability

[Dkt. 406] is DENIED and that no certificate of appealability shall be issued; it is

                FURTHER ORDERED that defendant’s motion for permission to appeal in forma

pauperis [Dkt. 407] is DENIED as moot; it is

                FURTHER ORDERED that defendant’s motion for clarification [Dkt. 405] is

DENIED; it is

                FURTHER ORDERED that defendant’s motion for declaratory judgment

[Dkt. 422] is DENIED; and it is

                FURTHER ORDERED that the Clerk of this Court is directed to notify the Clerk

of the U.S. Court of Appeals for the District of Columbia Circuit of this Memorandum Opinion

and Order and provide a copy to him.

                SO ORDERED.



                                                             _/s/________________________
                                                             PAUL L. FRIEDMAN
                                                             United States District Judge
DATE: March 15, 2017




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