Tran v. USA

Filing 4

ORDER DENYING 1 MOTION AND REFERRING APPLICATION FOR LEAVE OF COURT TO FILE A SECOND OR SUCCESSIVE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255(H) - filed by Khang Kien Tran. Signed by JUDGE DERRICK K. WATSON on 7/7/2016. - The Clerk of Court is directed to close the case. The case will be reopened if the Ninth Circuit Court of Appeals subsequently authorizes the filing of Transsuccessive Section 2255 habeas petition with this Court. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

KHANG KIEN TRAN,

CR. NO. 95-00151-5 DKW
CV. NO. 16-00346 DKW-KJM

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING MOTION AND
REFERRING APPLICATION FOR
LEAVE OF COURT TO FILE A
SECOND OR SUCCESSIVE
MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
UNDER 28 U.S.C. § 2255(H)

ORDER DENYING MOTION AND REFERRING
APPLICATION FOR LEAVE OF COURT TO FILE A SECOND OR
SUCCESSIVE MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255(H)
On June 24, 2016, Petitioner Khang Kien Tran, proceeding pro se, filed a
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Third
Section 2255 Motion”) and an Application for Leave of Court to File a Second or
Successive Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28
U.S.C. § 2255(F)(3) (“Application”). Dkt. Nos. 707 and 709. Tran previously
filed a petition pursuant to Section 2255 in 2003, which the Court denied on the
merits. See Dkt. Nos. 630 and 636. He subsequently sought reconsideration of the
denial of that motion, which the sentencing court construed as a second or
successive Section 2255 motion. See Dkt. No. 659. Tran’s present Section 2255

filings contend that his sentence is unconstitutional pursuant to the Supreme
Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and
Descamps v. United States, 133 S. Ct. 2276 (2013). Because Tran’s Third Section
2255 Motion is a “second or successive” petition that requires Section 2255(h)
certification before this Court may assert jurisdiction, it is DENIED without
prejudice. Tran’s Application is REFERRED to the Ninth Circuit Court of
Appeals.
BACKGROUND
I.

Plea, Sentencing, and Direct Appeal
In 1998, Tran was charged in the Third Superseding Indictment with:

(1) conspiring to possess with the intent to distribute more than 100 grams of
crystal methamphetamine between 1994 and 1996, in violation of 18 U.S.C.
§§ 841(a)(1) and 846 (Count 1); (2) distributing more than 100 grams of crystal
methamphetamine on January 27, 1995, in violation of Section 841(a)(1) (Count
2); (3) possession with the intent to distribute more than 100 grams of crystal
methamphetamine on January 27, 1995, in violation of Section 841(a)(1) and 18
U.S.C. § 2; (4) carrying a firearm during and in relation to a drug trafficking crime
on January 27, 1995, in violation of 18 U.S.C. § 924(c)(1) (Count 4); and (5) being
a felon in possession of a firearm on January 27, 1995, in violation of 18 U.S.C.
§ 922(g)(1). See Dkt. No. 434 (7/8/98 Indictment).
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On December 10, 1998, Tran entered a plea of guilty to Counts 2 and 5
pursuant to a plea agreement. The government dismissed Counts 1, 3, and 4
pursuant to the agreement. See Dkt. No. 503 (12/10/98 Minutes) and 511
(12/28/98 Order). On September 8, 2000, Tran was sentenced to 360 months
imprisonment as to Count 2 and 120 months as to Count 5, terms to run
concurrently. The sentencing court ordered a five-year period of supervised
release on Count 2, and three years for Count 5, also to run concurrently. See Dkt.
Nos. 592 and 600.
Tran filed an appeal on April 16, 2001, challenging the effectiveness of
counsel, whether the government breached its obligations under the plea
agreement, and whether the court erred in calculating his guideline range. The
Ninth Circuit affirmed his conviction on January 31, 2002. See Dkt. No 624.
II.

First and Second Section 2255 Motions
In his first Section 2255 Motion, filed on October 6, 2003, Tran challenged

his sentence based on allegations of ineffective assistance of counsel and
prosecutorial misconduct. The sentencing court denied the first Section 2255
Motion on February 3, 2004 and denied Tran’s Application for a Certificate of
Appealability on May 7, 2004. See Dkt. Nos. 636 and 643. Tran then filed a
motion for reconsideration of the February 3, 2004 order denying his first Section
2255 Motion, which the sentencing court construed as a “second or successive”
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habeas petition because it challenged his sentence based on a new theory of law.
See Dkt. No. 659 (1/4/05 Order). The sentencing court denied Tran’s motion for
reconsideration and transferred Tran’s second 2255 Motion to the Ninth Circuit
Court of Appeals.1 See Dkt. No. 659.
III.

Third Section 2255 Motion
Tran filed his Third Section 2255 Motion via letter requesting appointment

of counsel on June 6, 2016, specifically referencing “the newly decided Johnson
Case.” Dkt. No. 707. Thereafter, he filed his Application for Leave of Court to
File a Second or Successive Motion to Vacate, Set Aside, or Correct a Sentence
Pursuant to 28 U.S.C. § 2255(F)(3).2 Dkt. No. 709. Tran’s Application argues that
his sentence should be vacated under Johnson because his predicate offenses were
not “crimes of violence” and he no longer qualifies for any upward enhancements.
He contends that Johnson announced a new substantive limitation and seeks
authorization to file a second or successive 2255 motion.

1

Neither the District Court docket in Crim. No. 95-00151 nor the Ninth Circuit docket in No. 0010430 indicate whether the Ninth Circuit considered or certified Tran’s second Section 2255
motion pursuant to Section 2255(h), and whether he pursued the matter further. The Court has
reviewed the District Court and Ninth Circuit dockets in Tran’s various criminal and civil cases,
and has been unable to determine the ultimate resolution of his second Section 2255 motion. See
Dist. Ct. Civ. No. 03-00546DAE-BMK; Ninth Cir. Nos. 98-10278, 00-10430, 04-16040, 1430238, and 14-10572.
2
Although styled as an Application pursuant to Section 2255(f)(3), this subsection outlines the
potential deadlines for filing a Section 2255 motion. Because the issue has not been briefed, the
Court expresses no opinion as to timeliness or whether Tran is eligible for equitable tolling.

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DISCUSSION
I.

Tran’s Third Section 2255 Motion Is “Second or Successive”
A petitioner is required to receive certification by a panel of the appropriate

Court of Appeals before he may file a “second or successive” habeas petition in
District Court. 28 U.S.C. §§ 2255(h), 2244(b)(3)(A); Jones v. Ryan, 733 F.3d 825,
842 (9th Cir. 2013); United States v. Washington, 653 F.3d 1057, 1059 (9th Cir.
2011).
To obtain certification to file a second or successive motion from the
appellate court, Tran must demonstrate that his motion was filed based on:
(1)

newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable fact finder
would have found the movant guilty of the offense; or

(2)

a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court that was previously
unavailable.

28 U.S.C. § 2255(h); see also R. 9 Governing § 2255 Cases in the U.S. Dist. Cts.
(“Before presenting a second or successive petition, the petitioner must obtain an
order from the appropriate court of appeals authorizing the district court to
consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).”); Harrison v.
Ollison, 519 F.3d 952, 955 (9th Cir. 2008).
The requirements of Section 2255(h) create a jurisdictional bar to a
petitioner’s claims in District Court if the petitioner does not first obtain the Ninth
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Circuit Court of Appeals’ authorization. Ezell v. United States, 778 F.3d 762, 765
(9th Cir. 2015). A subsequent habeas petition is not considered successive if the
initial habeas petition was dismissed for a technical or procedural reason, rather
than on the merits. Slack v. McDaniel, 529 U.S. 473, 485-87 (2000). Tran’s first
Section 2255 Motion was decided on the merits, although the outcome of his
second Section 2255 Motion is unclear. As a result, Tran’s Third Section 2255
Motion is a successive petition that requires certification from the Ninth Circuit
Court of Appeals.
Tran’s Third Section 2255 Motion is purportedly brought pursuant to the
2015 United States Supreme Court decision in Johnson, which had not been
decided at the time of his previous habeas motion. Habeas petitions filed pursuant
to new rules of constitutional law, which do not involve any new facts, are “second
or successive” under Section 2255(h) and the guiding case law, and are not exempt
from appellate court certification requirement. See Gage v. Chappell, 793 F.3d
1159, 1164-66 (9th Cir. 2015); Jones, 733 F.3d at 842; Leal Garcia v. Quarterman,
573 F.3d 214, 221 (5th Cir. 2009); Stewart v. United States, 646 F.3d 856, 861
(11th Cir. 2011).
The purpose of Section 2255(h) is to allow the Circuit Courts of Appeals to
determine if the United States Supreme Court created: (1) a new rule; (2) of
constitutional law; (3) that was made retroactive to cases on collateral review;
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(4) that was previously unavailable. Ezell, 778 F.3d at 765; Leal Garcia, 573 F.3d
at 221 (“Indeed, this is the reason why authorization is needed to obtain review of
a successive petition”). Accordingly, the Court is without jurisdiction to hear
Tran’s Third Section 2255 Motion, which is DENIED without prejudice and his
Application is accordingly REFERRED to the Ninth Circuit Court of Appeals,
pursuant to Ninth Circuit Court of Appeals Rule 22-3.
CONCLUSION
Tran’s Third Section 2255 Motion (Dkt. No. 707) is a “second or
successive” petition that requires certification from the Ninth Circuit Court of
Appeals before this Court may assert jurisdiction. Consequently, his motion is
DENIED without prejudice.
Pursuant to Ninth Circuit Court of Appeals Rule 22-3(a), the Clerk of Court
is directed to REFER Tran’s Third Section 2255 Motion and Application (Dkt.
Nos. 707 and 709) to the Ninth Circuit Court of Appeals.
//

//

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The Clerk of Court is directed to close the case. The case will be reopened if
the Ninth Circuit Court of Appeals subsequently authorizes the filing of Tran’s
successive Section 2255 habeas petition with this Court.
IT IS SO ORDERED.
DATED: July 7, 2016 at Honolulu, Hawai‘i.

Tran v. USA; CR 95-151 (05) DKW; CV NO. 16-00346 DKW-KJM; ORDER
DENYING MOTION AND REFERRING APPLICATION FOR LEAVE OF
COURT TO FILE A SECOND OR SUCCESSIVE MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255(H)

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