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Jurisdiction: Texas Southern District Courts
Decision Date: 1/4/2016

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States v. Shittu United States v. Shittu (S.D. Tex., 2016)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ABDUL WAHEED ALEX SHITTU.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CRIMINAL ACTION NO. H-12-0457CIVIL ACTION NO. H-15-2127

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ENTERED: January 5, 2016January 4, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA v. ABDUL WAHEED ALEX SHITTU.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CRIMINAL ACTION NO. H-12-0457CIVIL ACTION NO. H-15-2127

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ENTERED: January 5, 2016January 4, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION AND ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Defendant, a federal inmate proceeding pro se filed this section 2255 motion challenging his convictions. (Docket Entry No. 48. ) The Government filed a motion to dismiss on November 15, 2015, based on expiration of limitations, and served Defendant a copy at his address of record that same date. (Docket Entry No. 59. ) Despite expiration of a reasonable time in excess of forty-five days, Defendant has failed to respond to the motion to dismiss, and the motion is uncontested.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Based on consideration of the pleadings, the motions, the record, and the applicable law, the Court GRANTS the motion to dismiss and DENIES the section 2255 motion, as follows.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. BACKGROUND AND CLAIMS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On November 14, 2012, Defendant pleaded guilty to conspiracy to commit health care fraud and aggravated identity theft. On June 12, 2013, the Court sentenced Defendant to 81 months in prison. Defendant did not appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Government moves to dismiss this proceeding as barred by the applicable one-year statute of limitations. Defendant does not contest the motion.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. ANALYSIS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Defendant's section 2255 motion is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA provides a one-year limitation period for filing collateral challenges to federal criminal judgments. 28 U.S.C. 2255(f). For purposes of Defendant's section 2255 motion, the one-year limitation commenced on June 28, 2013, the date on which Defendant's judgment of conviction became final, and expired one year later, on June 28, 2014. Defendant's motion, filed on July 20, 2015, is untimely.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In his motion, Defendant stated that he was unaware of "American law" and that he has a hearing impairment. These factors, however, do not excuse untimely filing and do not constitute grounds for equitable tolling. It is well settled that ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not justify an untimely filing. Molo v. Johnson 207 F. 3d 773, 775 (5th Cir. 2000); Felder v. Johnson 204 F. 3d 168, 171-73 (5th Cir. 2000); Fisher v. Johnson 174 F. 3d 710, 714 (5th Cir. 1999). See also United States v. Flores 981 F.2d 231, 236 (5th Cir. 1993) (holding that neither an inmate's pro se status, illiteracy, deafness, or lack of legal training amounts to factors external to the inmate to excuse an abuse of the writ). No grounds appear in the record or pleadings

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        warranting application of equitable tolling, and Defendant's section 2255 motion must be dismissed as barred by the one-year statute of limitations.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Government's motion to dismiss (Docket Entry No. 59) is GRANTED. Defendant's section 2255 motion (Docket Entry No. 48) is DENIED. A certificate of appealability is DENIED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Signed at Houston, Texas, on this the 4 day of January, 2016.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        KEITH P. ELLISON        UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        U.S. v. Flores, 981 F.2d 231 (5th Cir., 1993)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1993-01-20 Citations: 18
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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