UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

UNITED STATES OF AMERICA )

)

v. ) Criminal No. 03-0557-1 (PLF)

) Civil Action No. 16-0499 (PLF)

ANDRE MAURICE ALLEN, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION AND ORDER

In 2006, a jury convicted defendant Andre Maurice Allen on two counts of 

unlawful distribution of phencyclidine (“PCP”). Judge Richard Roberts sentenced defendant to 

210 months of imprisonment. The defendant filed a notice of appeal, but his appeal was 

dismissed for want of prosecution on December 9, 2008. See Mandate of D.C. Circuit Court of 

Appeals [Dkt. No. 345]. On February 3, 2016, Judge Roberts denied defendant’s motion to 

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United States 

Sentencing Guidelines [Dkt. No. 391]. On March 15, 2016, defendant filed a motion to vacate, 

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his criminal history 

score had been miscalculated during sentencing and that he received ineffective assistance of 

counsel. Defendant’s Motion to Vacate, Set Aside, or Correct his Sentence at 5 [Dkt. No. 395].

On May 3, 2016, the defendant filed a motion for leave to amend his original Section 2255 

motion, alleging two new grounds for his ineffective assistance of counsel claim and an 

additional due process claim. Defendant’s Motion for Leave to Amend at 1-2 [Dkt. No. 400]. 

And in his reply brief responding to the government’s opposition, defendant raised, for the first 
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time, an actual innocence argument. Defendant’s Reply to the Government’s Opposition at 3-12. 

After careful consideration of the parties’ briefs and the relevant legal authorities, the Court will 

deny defendant’s motion as time-barred.

II. DISCUSSION

28 U.S.C. § 2255 allows a prisoner in custody to “move the court which imposed 

the sentence to vacate, set aside, or correct the sentence.” But the Court must first determine 

whether the motion is timely, because the statute imposes a one-year statute of limitations on 

such motions. See United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). Untimely 

motions, absent equitable tolling, are time-barred and must be dismissed. See id. at 205. 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 

(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).

Defendant’s conviction became final when his appeal was dismissed for want of 

prosecution on December 9, 2008. Because none of the exceptions listed in 28 U.S.C. 
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§ 2255(f)(2)-(4) applies, defendant’s one-year limitations period within which to file his Section 

2255 motions expired on December 9, 2009.

Although defendant’s motion is time-barred under the plain language of the 

statute, there are two potential avenues through which defendant’s habeas motion could be 

considered on the merits: (1) equitable tolling; and (2) a credible showing of actual innocence. 

Equitable tolling can “extend” the one-year limitations period if a defendant establishes two 

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

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Defendant 

does not allege, however, that he was hampered in any significant way that could explain his 

over seven-year delay in filing the motion. Nor has he alleged or provided evidence that he has 

diligently pursued his rights during those seven years. While defendant references his pro se

status as a reason for the delay, “failure to meet the statutory deadline due to pro se

representation is not a circumstance in which it is appropriate to toll the statute of limitations.” 

United States v. Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009); see also United States v. Cicero, 

214 F.3d at 203 (“The prisoner’s ignorance of the law or unfamiliarity with the legal process will 

not excuse his untimely filing, nor will a lack of representation during the applicable filing 

period.”). Because the Court is not persuaded that defendant has diligently pursued his rights nor 

that any extraordinary circumstances stood in his way, defendant does not qualify for equitable 

tolling.

Defendant also has failed to establish a credible showing of actual innocence to 

overcome the one-year limitations period. The Supreme Court held that “actual innocence, if 

proved, serves as a gateway through which a petitioner may pass whether the impediment is a 

procedural bar . . . or . . . expiration of the statute of limitations,” including the limitation period 
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under 28 U.S.C. § 2244(d). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). But this 

standard is demanding — “a petitioner does not meet the threshold requirement unless he 

persuades the district court that, in light of [] new evidence, no juror, acting reasonably, would 

have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 

298, 329 (1995)). 

Defendant appears to raise two issues that he argues establish his actual innocence

sufficient to pass through this gateway: (1) that the government relied on testimony and 

evidence of controlled buys carried out by a government informant; and (2) that the government 

produced a draft version of one of the government’s exhibits as Jencks material that contains 

handwriting and may conflict with either the corresponding government exhibit or the testimony 

at trial from an FBI agent and the government informant. As to both arguments, however, 

defendant fails to identify any newly discovered evidence unavailable to him at trial. The 

government’s testimony and evidence concerning the controlled buys were presented at trial and, 

by the defendant’s own admission, the government produced the draft version of the 

government’s exhibit during trial. See Defendant’s Reply at 8 [Dkt. No. 402]. All of the 

evidence relevant to defendant’s claims therefore was known to his counsel at the time of his 

trial. The Court also is unpersuaded that any of the issues raised, as the Court understands them, 

constitute “evidence of innocence so strong that [this Court] cannot have confidence in the 

outcome of the trial unless the court is also satisfied that the trial was free of nonharmless 

constitutional error.” McQuiggin v. Perkins, 133 S. Ct. at 1936 (quoting Schlup v. Delo, 513 

U.S. at 316). Moreover, the Court notes that it is not error for the government to rely upon 

evidence obtained through controlled buys. See generally United States v. Suggs, 146 F. Supp. 

3d 151 (D.D.C. 2015); United States v. Knight, 975 F. Supp. 2d 119, 133 (D.D.C. 2013); United 
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States v. Talley, 674 F. Supp. 2d 221, 227 (D.D.C. 2009). Defendant thus has failed to 

demonstrate a “credible showing [to] allow [defendant] to pursue his constitutional claims” 

despite the passage of the one-year limitations period. McQuiggan v. Perkins, 133 S. Ct. at 

1931. The Court will deny defendant’s motion to vacate as time-barred.

III. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that defendant’s motion for leave to amend [Dkt. 400] is GRANTED;

and it is

FURTHER ORDERED that defendant’s motion to vacate his sentence under 28 

U.S.C. § 2255 [Dkt. 395] is DENIED.

SO ORDERED.

/s/_________________________

PAUL L. FRIEDMAN

United States District Judge

DATE: August 2, 2016