Nguyen v. United States of America
Filing
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Memorandum Opinion and Order denying in its entirety 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR07-4068-MWB). This matter is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 3/19/2013. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
PHIEU VAN NGUYEN,
Petitioner,
No. C 11-4099-MWB
(No. CR 07-4068-MWB)
vs.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S SECTION 2255
MOTION
____________________
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. The § 2255 Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Standards For § 2255 Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Procedural Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.
Preliminary matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.
Procedural default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Actual Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Insufficient Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
E. Certificate Of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
I. INTRODUCTION
This case is before me on petitioner Phieu Van Nguyen’s Pro Se Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (Civ. docket no. 1), filed on November 4, 2011. Nguyen raises several claims
related to his conviction. The respondent denies that Nguyen is entitled to any relief on
his claims.
A. The Criminal Proceedings
On August 27, 2007, Nguyen was charged by a two-count Indictment (Crim. docket
no. 1). Count one charged Nguyen with engaging in a continuing criminal enterprise.
Count two charged Nguyen with conspiracy to manufacture, to possess with intent to
distribute, and to distribute one thousand plants or more of marijuana. See Crim. docket
no. 1. On October 19, 2007, Nguyen, by counsel, filed a Written Waiver Of Personal
Appearance At Arraignment (Crim. docket no. 67), and entered a written plea of not guilty
to both counts of the Indictment. On December 20, 2007, the government filed a
Superseding Indictment (Crim. docket no. 87), adding counts 3 to 26, each a charge of
money laundering. Nguyen, by counsel, signed and filed a Written Waiver Of Personal
Appearance At Arraignment (Crim. docket no. 104), which contained a plea of not guilty
to all counts of the Superseding Indictment. On December 31, 2007, then Chief United
States Magistrate Judge Paul A. Zoss entered an Order accepting the waiver of the
appearance of Nguyen and entering his plea of not guilty to each count. See Crim. docket
no. 105.
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On January 24, 2008, the government filed a Second Superseding Indictment (Crim.
docket no. 128). Count 1 of the Second Superseding Indictment remained the same as
count 1 of the Superseding Indictment. Count 2 of the Second Superseding Indictment was
changed to add additional defendants and the fact that the conspiracy allegedly occurred
near various schools and parks. Counts 3 to 8 of the Superseding Indictment were
removed, and counts 9 to 14 of the Superseding Indictment were renumbered as counts 3
to 8 of the Second Superseding Indictment. Counts 15 to 16 of the Superseding Indictment
were renumbered as counts 9 to 10 of the Second Superseding Indictment, and counts 17
to 26 of the Superseding Indictment were revised and renumbered as counts 11 to 20 of the
Second Superseding Indictment. See Crim. docket no. 142. On February 4, 2008,
Nguyen filed a Written Waiver Of Personal Appearance At Arraignment, with an Order,
signed by Judge Zoss, waiving Nguyen’s personal appearance and entering his plea of not
guilty to all counts of the Second Superseding Indictment. See Criminal docket no. 158.
On August 11, 2008, Nguyen appeared before me and pled guilty to count two of
the indictment. See Crim. docket no. 306. On October 12, 2008, the government filed
a Motion To Dismiss (Crim. docket no. 312), counts 11 to 20 of the Second Superseding
Indictment. On August 14, 2008, I entered an Order (Crim. docket no. 322), granting the
government’s motion to dismiss counts 11 to 20 of the Second Superseding Indictment.
Nguyen proceeded to a jury trial on August 19, 2008, on count one and counts three
through ten of the Second Superseding Indictment. See Crim. docket no. 338). On August
29, 2008, the jury entered a verdict of guilty on count one, and counts five through nine
of the Second Superseding Indictment, and acquitted Nguyen of counts three and four of
the Second Superseding Indictment. See Crim. docket no. 353).
Nguyen, by counsel, filed a Motion For Downward Departure And Downward
Variance (Crim. docket no. 450) on November 19, 2008, based on his extraordinary
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employment record, his close family ties, and his family responsibilities.
Nguyen
appeared before me on November 24, 2008, for a sentencing hearing on counts 1 and
counts 5 through 10 of the Second Superseding Indictment. See Crim. docket no. 461.
Count two of the Second Superseding Indictment had been vacated on motion of the United
States, and Nguyen had been acquitted of the other counts. I found that Nguyen’s criminal
history category was 1, with zero criminal history points. See Sent. Trans. at 5. I
determined that Nguyen’s total offense level was 40 and found that the advisory guideline
range in Nguyen’s case was 292 to 365 months. See Sent. Trans. at 26. I then granted
a downward variance and sentenced Nguyen to 240 months, consisting of 240 months on
Count one and 120 months each, on Counts 5, 6, 7, 8, 9 and 10 of the Second Superseding
Indictment to be served concurrently. See Crim. docket no. 473.
Nguyen, by counsel, filed a Notice of Appeal (Crim. docket no. 474) to the United
States Court of Appeals for the Eighth Circuit on December 2, 2008, challenging both his
conviction and the forfeiture order in his case. On April 2, 2010, the Eighth Circuit Court
of Appeals affirmed Nguyen’s conviction and affirmed in part and reversed in part my
forfeiture order in the case. See Crim. docket no. 584.
B. The § 2255 Motion
On November 4, 2011, Nguyen filed a Pro Se Motion Under § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1). On
August 30, 2012, counsel appointed to represent Nguyen on this Motion, filed a Report
To The Court (Crim. docket no. 16), stating that he had nothing additional to provide in
support of Nguyen’s Motion. The Respondent filed a Government’s Response and
Memorandum In Support Of Government’s Response To Defendant’s Motion (Civ. docket
no. 18) on September 28, 2012.
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II. LEGAL ANALYSIS
A. Standards For § 2255 Relief
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground [1] that the sentence was imposed in
violation of the Constitution or laws of the United States, or
[2] that the court was without jurisdiction to impose such
sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (“Under
28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the
ground that his sentence was imposed in the absence of jurisdiction or in violation of the
Constitution or laws of the United States, was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339 F.3d
777, 781 (8th Cir. 2003) (“To prevail on a § 2255 motion, the petitioner must demonstrate
a violation of the Constitution or the laws of the United States.”). Thus, a motion pursuant
to § 2255 “is ‘intended to afford federal prisoners a remedy identical in scope to federal
Habeas corpus.’” United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting
Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67
F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One “well established principle” of § 2255 law is that “‘[i]ssues raised and decided
on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28
U.S.C. § 2255.’” Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting
United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.
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One exception to that principle arises when there is a “miscarriage of justice,” although
the Eighth Circuit Court of Appeals has “recognized such an exception only when
petitioners have produced convincing new evidence of actual innocence,” and the Supreme
Court has not extended the exception beyond situations involving actual innocence. Wiley,
245 F.3d at 752 (citing cases, and also noting that “the Court has emphasized the
narrowness of the exception and has expressed its desire that it remain ‘rare’ and available
only in the ‘extraordinary case.’” (citations omitted)). Just as § 2255 may not be used to
relitigate issues raised and decided on direct appeal, it also ordinarily “is not available to
correct errors which could have been raised at trial or on direct appeal.” Ramey v. United
States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). “Where a defendant has
procedurally defaulted a claim by failing to raise it on direct review, the claim may be
raised in Habeas only if the defendant can first demonstrate either cause and actual
prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622
(1998) (internal quotations and citations omitted).
“Cause and prejudice” to resuscitate a procedurally defaulted claim may include
ineffective assistance of counsel, as defined by the Strickland test, discussed below.
Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when
brought for the first time pursuant to § 2255, because of the advantages of that form of
proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003).
Otherwise, “[t]he Supreme Court recognized in Bousley that ‘a claim that “is so novel that
its legal basis is not reasonably available to counsel” may constitute cause for a procedural
default.’” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley,
523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16
(1984)). The “actual innocence” that may overcome either procedural default or allow
relitigation of a claim that was raised and rejected on direct appeal is a demonstration
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“‘that, in light of all the evidence, it is more likely than not that no reasonable juror would
Have convicted [the petitioner].’” Johnson v. United States, 278 F.3d 839, 844 (8th Cir.
2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37
(2006). “‘This is a strict standard; generally, a petitioner cannot show actual innocence
where the evidence is sufficient to support a [conviction on the challenged offense].’” Id.
(quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Nguyen’s claims for § 2255
relief.
B. Procedural Matters
1.
Preliminary matters
“A district court does not err in dismissing a movant’s section 2255 motion without
a hearing if (1) the movant’s ‘allegations, accepted as true, would not entitle’ the movant
to relief, or ‘(2) the allegations cannot be accepted as true because they are contradicted
by the record, inherently incredible, or conclusions rather than statements of fact.’”
Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006) (quoting Sanders v. United
States, 341 F.3d 720, 722 (8th Cir. 2003), with citation and quotation marks omitted); see
28 U.S.C. § 2255. On the other hand, an evidentiary hearing is necessary where “‘the
court is presented with some reason to question the evidence’s credibility.’” Kingsberry
v. United States, 202 F.3d 1030, 1033 (8th Cir. 2000) (quoting 1 Liebman and Hertz,
Federal Habeas Corpus Practice and Procedure § 19.5, at 723 (3rd ed. 1998); id. at 1033
n.6 (also quoting 28 U.S.C. § 2254, Rule 7 advisory committee’s note (1994), made
applicable to § 2255 by reference, as stating, “When the issue is one of credibility,
resolution on the basis of affidavits can rarely be conclusive, but that is not to say they
may not be helpful.”); see also Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir.
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2001) (holding that the district court abused its discretion in not holding an evidentiary
hearing on a § 2255 claim of failure to call alibi witnesses, because the record before the
district court “contained sharply conflicting evidence”). Even though ineffective assistance
of counsel claims may be raised on a § 2255 motion, because of the advantages of that
form of proceeding for hearing such claims, see Massaro, 538 U.S. at 500, that does not
mean that an evidentiary hearing is required for every ineffective assistance claim
presented in a § 2255 motion.
In this case, I conclude that no evidentiary hearing is required on any issue because
the record conclusively shows that Nguyen’s allegations either cannot be accepted as true,
because they are contradicted by the record, or because, even if Nguyen’s allegations were
accepted as true, they would not entitle him to relief. Buster, 447 F.3d at 1132. “No
hearing is required where the claim is inadequate on its face or if the record affirmatively
refutes the factual assertions upon which it is based.” Sinisterra v. United States, 600 F.3d
900, 906 (8th Cir. 2010) (citing Watson v. United States, 493 F.3d 960, 963 (8th Cir.
2007) (internal quotations and citation omitted)).
2.
Procedural default
Section 2255 relief is not available to correct errors which could have been raised
at trial or on direct appeal, absent a showing of cause and prejudice, or a showing that the
alleged errors were fundamental defects resulting in a complete miscarriage of justice. See
Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993). “[C]ause and prejudice” to
overcome such default may include “ineffective assistance of counsel.” See Becht v.
United States, 403 F.3d 541, 545 (8th Cir. 2005). The Eighth Circuit Court of Appeals has
expressly recognized that a claim of ineffective assistance of counsel should be raised in
a § 2255 proceeding, rather than on direct appeal. See United States v. Hughes, 330 F.3d
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1068, 1069 (8th Cir. 2003) (“When claims of ineffective assistance of trial counsel are
asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”).
Upon thorough review of the pleadings in this matter, and having construed
Nguyen’s pleadings liberally, I cannot find that Nguyen has raised a claim of ineffective
assistance of counsel that will overcome his procedural default.
Nguyen asserts, without argument, that (1) he should be able to “redress” his
conviction of engaging in a Continuing Criminal Enterprise, and (2) that he was prejudiced
“because he was charged simultaneously with the offense of CCE and conspiracy to
manufacture marijuana in light of Congress’ intent for said offenses to be separate.” He
does not state, however, how his trial attorney provided ineffective assistance of counsel,
with regard to these claims. Motion at 4. Nguyen’s Motion, with regard to both of these
claims, is simply insufficient to raise any issue as to whether this conviction was a result
of any failure of trial counsel. See Saunders v. United States, 236 F.3d 950, 953 (8th Cir.
2001) (lack of specificity prevents analysis of ineffective assistance). Further, Nguyen did
not raise this claim in his direct appeal. Section 2255 relief is not available to correct
errors which could have been raised at trial or on direct appeal, absent a showing of cause
and prejudice, or a showing that the alleged errors were fundamental defects resulting in
a complete miscarriage of justice. See Ramey v. United States, 8 F.3d 1313, 1314 (8th
Cir. 1993). Because Nguyen has not shown cause and prejudice and did not raise these
claims on direct appeal, they are procedurally defaulted.
Nguyen appears to raise six other grounds for consideration in his Motion, but states
that they are grounds that were raised and decided on appeal. At no point in his pleadings,
does Nguyen assert that these claims are related to ineffective assistance of counsel. “With
rare exceptions, § 2255 may not be used to religate matters decided on direct appeal. See
Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011) (quoting Davis v. United
9
States, 417 U.S. 333, 346-47 (1974)). Nguyen’s claims that were presented, argued, and
adversely decided on appeal are procedurally barred in this proceeding.
I will consider Nguyen’s remaining claim of “actual innocence” to see if it provides
a “gateway” for consideration of his defaulted claims or an independent ground for relief.
C. Actual Innocence
Nguyen, pro se, appears to assert a claim of actual innocence. Motion at 4.
Respondent asserts that this claim is procedurally barred because Nguyen did not raise this
claim on appeal. Response at 5. Additionally, Respondent argues, Nguyen offers no
evidence in support of this claim. Response at 5.
I note that there is a difference between a “gateway claim” and a “freestanding
claim” of actual innocence. See House v. Bell, 547 U.S. 518 (2006). A gateway claim
of actual innocence, as previously recognized by the Supreme Court, exists when a
petitioner attempts to avoid a procedural bar that would otherwise preclude him or her
from bringing other claims. See House, 547 U.S. at 536-537; Bousley v. United States,
523 U.S. 614, 623 (1998). A claim of actual innocence serves as a gateway for the
petitioner to argue his or her other claims before the habeas court. Id. Thus, it is a
complement to the “cause and prejudice” standard that permits a petitioner to raise an
otherwise procedurally barred claim. See McNeal, 249 F.3d 747, 749 (8th Cir. 2001) (“A
defendant who has procedurally defaulted a claim by failing to raise it on direct review
may raise that claim in a Section 2255 proceeding only by demonstrating cause for the
default and prejudice or actual innocence.”). A freestanding claim of actual innocence,
on the other hand, is a petitioner’s attempt to prove his or her innocence outright. See
House, 547 U.S. at 554-55; see also Herrera v.Collins, 506 U.S. 390, 417 (1993)
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(recognizing the possibility of such a claim). A successful freestanding claim of actual
innocence would render any procedural bar irrelevant.
A freestanding claim of actual innocence, however, has never been explicitly
recognized by the Supreme Court. See id. at 555. The Supreme Court concluded, in
House, “that whatever burden a hypothetical freestanding innocence claim would require,
this petitioner has not satisfied it.” Id. The Court further established that the standard for
any freestanding innocence claim would be “extraordinarily high.” Id. (quoting Herrera,
506 U.S. at 417). While the Court did not further explain what an “extraordinarily high”
standard would consist of, the Court did indicate that this standard would be higher than
the standard for a successful “gateway” innocence claim. Id. (“The sequence of the
Courts decisions in Herrera and Schlup v. Delo, 513 U.S. 298, 324,(1995), first leaving
unresolved the status of freestanding claims and then establishing the gateway standard,
implies at least, that Herrera requires more convincing proof of innocence than Schlup.”).
While the standard for a “gateway” innocence claim is less demanding than its
counterpart, it is still very strict. A petitioner “asserting innocence as a gateway to
defaulted claims must establish that, in light of new evidence, it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id.
at 536-537. Thus, first, a petitioner must present “new reliable evidence, whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence, that was not presented at trial.” Id. at 537 (quoting Schlup, 513 U.S. at 324).
Armed with such evidence a petitioner may then attempt to meet the “demanding” standard
that “permits review only in the extraordinary case.” Id. at 537 (quoting Schlup, 513 U.S.
at 327).
In this case, I will assume the defendant has made both kinds of “actual innocence”
claims. However, Nguyen has not offered any evidence supporting this claim. Rather,
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he merely states that he is actually innocent. Motion at 4. The lack of any new evidence,
alone, is enough to deny Nguyen’s claim when characterized as an “actual innocence”
claim, either as a “gateway” claim or as a “freestanding” claim. See House, 547 U.S. at
537. For these reasons, Nguyen’s claim of “actual innocence” fails.
D. Insufficient Evidence
If this claim is construed as a claim of insufficient evidence, rather than one of
actual innocence, Nguyen is procedurally barred from making such a claim because he did
not raise it on direct appeal. Section 2255 relief is not available to correct errors which
could have been raised at trial or on direct appeal, absent a showing of cause and
prejudice, or a showing that the alleged errors were fundamental defects resulting in a
complete miscarriage of justice. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.
1993). Therefore, even when construed as a claim of insufficient evidence, this claim
fails.
E. Certificate Of Appealability
Denial of Nguyen’s § 2255 Motion raises the question of whether or not he should
be issued a certificate of appealability for his claims therein. The requirement of a
certificate of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in
pertinent part, as follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
***
(B) the final order in a proceeding under section 2255.
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28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). To obtain a certificate of
appealability on claims for § 2255 relief, a defendant must make “a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). “A
substantial showing is a showing that issues are debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings.” Cox, 133
F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El that
“‘[w]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.’” Miller-El, 537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
I find that Nguyen has not made a substantial showing of the denial of a
constitutional right on his § 2255 claims. See 28 U.S.C. § 2253(c)(2). Specifically, there
is no showing that reasonable jurists would find my assessment of Nguyen’s claims
debatable or wrong, Miller-El, 537 U.S. at 338; Cox, 133 F.3d at 569, or that any court
would resolve those issues differently. Cox, 133 F.3d at 569. Therefore, Nguyen does
not make the requisite showing to satisfy § 2253(c) on his claims for relief, and no
certificate of appealability will issue in this case. See 28 U.S.C. § 2253(c)(2); FED. R.
APP. P. 22(b).
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III. CONCLUSION
Upon the foregoing, Nguyen’s Motion Under 28 U.S.C. § 2255 (Civ. docket no. 1),
is denied in its entirety. This matter is dismissed in its entirety. No certificate of
appealability will issue for any claim or contention in this case.
IT IS SO ORDERED.
DATED this 19th day of March, 2013.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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