USA v. LAMBERT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ABOUBACAR CONGO, 	)
)
Petitioner, 	)
)
v. 	) 	2:18-cr-00193-NT-2
) 	2:24-cv-00283-NT
UNITED STATES OF AMERICA, 	)
)
Respondent 	)
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his
sentence. 	(Motion, ECF No. 295.) 	Following a guilty plea, Petitioner was convicted of
conspiring to distribute and to possess with intent to distribute cocaine base and fentanyl.
(Judgment, ECF No. 269.) The Government asks the Court to dismiss the matter because
Petitioner filed the motion after the statute of limitations expired. 	(Response, ECF No.
302.)
Following a review of the record and after consideration of Petitioner’s motion and
the Government’s request for dismissal, I recommend the Court grant the Government’s
request and dismiss Petitioner’s motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2018, the grand jury indicted Petitioner for: (1) conspiring to distribute
and to possess with intent to distribute cocaine base and fentanyl in violation of 21 U.S.C.
§§ 846, 841(a)(1) and (b)(1)(C), (2) possessing with intent to distribute cocaine base and
fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and (3) maintaining a drug-
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involved premises in violation of 21 U.S.C. §§ 856(a)(2) and 856(b). 	(Indictment, ECF
No. 57.) 	Petitioner unsuccessfully attempted to exclude certain evidence. 	(Motions to
Suppress, ECF Nos. 115–17; Hearing, ECF No. 139; Order, ECF No. 146.)
In September 2019, Petitioner agreed to plead guilty to the conspiracy count of the
indictment in consideration for the Government dismissing the remaining counts, agreeing
to recommend guideline reductions for acceptance of responsibility, and limiting the
guideline levels for the relevant drug quantities. 	(Plea Agreement, ECF No. 180; Guilty
Plea, ECF No. 181.) 	In December 2020, the Court sentenced Petitioner to seventy-eight
months in prison. (Judgment, ECF No. 269.) In December 2021, the First Circuit affirmed.
United States v. Congo, 21 F.4th 29, 30–31 (1st Cir. 2021).
In August 2024, Petitioner filed the § 2255 motion. (Motion, ECF No. 295.) The
Government argues the § 2255 motion should be dismissed because it was untimely filed.
(Response, ECF No. 302.)
DISCUSSION
“A 1-year period of limitation” applies to a collateral attack on a federal conviction.
28 U.S.C. § 2255(f). The period begins to run 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
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(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
Id. When there are multiple claims at issue, “the period of limitation in 28 U.S.C. § 2255(f)
should be applied on a claim-by-claim basis.” Capozzi v. United States, 768 F.3d 32, 33
(1st Cir. 2014).
Petitioner does not allege, nor does the record reflect, that the Government imposed
an impediment to a timely filing; Petitioner’s claims do not rely on a right newly-
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; and Petitioner does not allege newly-discovered facts in support of his section 2255
claims. Because paragraphs (2), (3), and (4) do not apply, therefore, the limitations period
began to run when Petitioner’s judgment of conviction became final.
The Court entered Petitioner’s judgment of conviction on December 16, 2020.
Petitioner filed an appeal to the First Circuit. The First Circuit affirmed on December 17,
2021, and issued its mandate on January 7, 2022. Petitioner then had ninety days to seek
a writ of certiorari from the United States Supreme Court. Sup. Ct. R. 13. Petitioner did
not file a request for a writ from the Supreme Court. Petitioner’s judgment became final
following the expiration of the ninety-day period on April 7, 2022, at the latest.
See Clay v. United States, 537 U.S. 522, 532 (2003) (“We hold that, for federal criminal
defendants who do not file a petition for certiorari with this Court on direct review,
§ 2255’s one-year limitation period starts to run when the time for seeking such review
expires”). 	The limitation period for filing a § 2255 motion to challenge the judgment
expired one year later, on April 7, 2023. See Rogers v. United States, 180 F.3d 349, 355
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n.13 (1st Cir. 1999) (“When a statute of limitations is measured in years, the last day for
instituting the action is the anniversary date of the start of the limitations period”)
(quotation omitted). Petitioner filed his motion on August 5, 2024, nearly sixteen months
after the limitations period expired.
“[T]he AEDPA statute of limitations defense is not jurisdictional” and “is subject
to equitable tolling in appropriate cases.” 	Holland v. Florida, 560 U.S. 631, 645 (2010)
(internal quotations omitted). “To obtain tolling . . . a petitioner bears a substantial burden
to establish . . . that he exercised reasonable diligence in trying to preserve his rights but
was prevented from timely filing by extraordinary circumstances.” 	Dominguez v. Duval,
527 F. App’x 38, 40 (1st Cir. 2013); see also Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir.
2007) (discussing illustrative cases). “The diligence prong covers those affairs within the
petitioner’s control, while the extraordinary-circumstances prong covers matters outside
his control.” Blue v. Medeiros, 913 F.3d 1, 8 (1st Cir. 2019).
The only potential basis for equitable tolling that Petitioner identified in his § 2255
motion was that because Petitioner had difficulty talking with his lawyer after he was
transferred three or four times among prison facilities, he did not learn of his rights or the
relevant laws until recent immigration proceedings began against him. 	It is well
established, however, that “[i]gnorance of the law alone, even for incarcerated pro se
prisoners, does not excuse an untimely filing.” Lattimore v. Dubois, 311 F.3d 46, 55 (1st
Cir. 2002). 	Petitioner has not alleged or demonstrated an extraordinary amount of
movement within the Bureau of Prisons, and he has not otherwise explained why the
transfers he experienced prevented him from completing the necessary research to file a §
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2255 motion. Furthermore, because the transfers he described occurred between February
2021 and March 2023, even if he could support his request for equitable tolling, the tolling
would only account for at most eleven (April 2022 to March 2023) of the sixteen months
between the expiration of the limitations period and the filing of Petitioner’s motion.
In his reply, Petitioner cited restrictions associated with the COVID-19 pandemic
as a reason for his delay in the filing of the motion. 	While courts have recognized the
exceptional nature of the pandemic for some purposes, “the COVID-19 pandemic does not
automatically warrant equitable tolling for any petitioner who seeks it on that basis. The
petitioner must establish that he was pursuing his rights diligently and that the COVID-19
pandemic specifically prevented him from filing his motion.” United States v. Henry, No.
2:17-cr-00180, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (emphasis in original).
Petitioner has not presented an argument or evidence that would support an equitable
tolling finding. The record does not reflect that Petitioner would have faced a significant
barrier for long enough to account for the sixteen-month-delay, as the limitations period
did not begin to run until more than two years into the pandemic, and the public health
emergency designation ended in May 2023, see, e.g., United States v. Brown, No. 18-CR-
0604 (JS), 2024 WL 4790165, at *5 (E.D.N.Y. Nov. 14, 2024), approximately fifteen
months before Petitioner filed the § 2255 motion.
Because Petitioner did not file the § 2255 motion within the applicable limitation
period, and because equitable tolling does not apply, dismissal is warranted.1
1 Even if Petitioner could establish that he timely filed his request for habeas relief, his § 2255 motion would
still fail. Contrary to his first ground for relief, Petitioner was specifically informed of the immigration
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C ONCLUSION
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule
8 of the Rules Governing Section 2255 Cases. 	In addition, I recommend that the Court
deny Petitioner’s motion for habeas relief under 28 U.S.C. § 2255. 	I further recommend
that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing
Section 2255 Cases because there is no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. § 2253(c)(2).
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 23rd day of December, 2024.
consequences of his guilty plea. (Change of Plea Hearing Transcript at 8:12–23, ECF No. 280). A review
of the record also reveals no support for Petitioner’s vague and conclusory allegation that his attorney did
not work with him. Finally, the transcript of the change of plea hearing conclusively refutes Petitioner’s
contention that he was told by the Court that he would be sentenced to thirty years to life if he did not accept
the plea offer. The Court merely informed Petitioner of the maximum sentence that applied to the charge,
as Rule 11(b)(1)(H) requires, and Petitioner acknowledged that no one had made any representations to him
about what the sentence would be in order secure his guilty plea. (Id. at 18:24–20:7, 20:19–21:8).
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