 

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA,
Criminal Action No. 98-207(GK)

V.

ALBERT ABUNAW TABI,

Defendant.

 

MEMORANDUM OPINION

This 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.

I. BACKGROUND

In 1998, a jury convicted Mr. Tabi of making false statements
in his passport application. On October l, 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

ll, 2006.1

II. ANALYSIS
While 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. §ee

United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). The

 

l-year statute of limitations runs from the latest of-

(l) 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.

 

1 Although Mr. Tabi styled his pleading as a “Motion to Re-Open Case” and
attached his Section 2255 motion, the Court will construe the filings
together as a motion under 28 U.S.C. § 2255.

_2_

 

 

 

 

 

28 U.S.C. § 2255(f).
In this 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.
Nonetheless, a court may still consider a time-barred Section
2255 motion on the merits if a defendant demonstrates: (1) grounds
for equitable 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
_3_

 

 

 

 

 

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 as
untimely.

The 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. §e§ 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 elapsed between
the Court of Appeals’ dismissal and the filing of the Motion. Mr.

Tabi, therefore, is not an eligible Section 2255 petitioner.

1 _4_

 

 

 

For these reasons, the Court finds that Mr. Tabi is
procedurally barred from § 2255 relief. The Court need not reach

the merits of Mr. Tabi's claim.

I I I . CONCLUS ION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion. to Vacate, Set Aside, Or

Correct Sentence shall be denied.

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June 1, 2017 ciadys K@§éief
United States District Judge

CoBies to: attorneys on record via ECF

 

 

 

 

