Nguyen v. USA
MEMORANDUM OPINION & ORDER: 1. Warden Gregory Kizziah is SUBSTITUTED for USA as the respondent in this proceeding. 2. Nguyens petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 R. 1 is DENIED. 3. This action is DISMISSED and STRICKEN from the Courts docket. 4. A corresponding judgment will be entered this date. Signed by Judge Karen K. Caldwell on 6/14/17.(MJY) cc: COR, Nguyen via US Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
TU TUAN NGUYEN,
Civil Action No. 7:16-230-KKC
GREGORY KIZZIAH, Warden,1
*** *** *** ***
Tu Tuan Nguyen was recently an inmate at the United States Penitentiary (USP) – Big
Sandy in Inez, Kentucky. Proceeding without an attorney, Nguyen filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1]. For the reasons set forth below, the Court
will deny Nguyen’s petition.
In 2006, Nguyen was convicted of conspiracy to distribute ecstasy, and the trial court
sentenced him to 150 months in prison. United States v. Nguyen, No. 1:06-cr-234-2 (M.D.N.C.
2006). While Nguyen was confined at the USP-Big Sandy, he filed the § 2241 petition in this case.
[R. 1]. Nguyen’s petition challenges the validity of his underlying conviction and sentence. [R. 1
at 2]. First, Nguyen emphasizes that, in Burrage v. United States, 134 S. Ct. 881, 892 (2014), the
Supreme Court held that, “at least where the use of the drug distributed by the defendant is not an
independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot
be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is
While Nguyen named the United States of America as the respondent in this proceeding, the correct
respondent is the warden of the facility where Nguyen was confined. See Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004). Therefore, the Court will substitute Warden Gregory Kizziah as the respondent in this proceeding.
a but-for cause of the death or injury.” [R. 1-6 at 3-4]. Nguyen suggests that, in light of the
Burrage decision, he too could not have been held liable under the penalty enhancement provision
of 21 U.S.C. § 841(b)(1)(C). [R. 1-6 at 1-4]. Second, Nguyen appears to argue that he was
improperly sentenced under the federal sentencing guidelines. [R. 1-6 at 4-5].
The Court will deny Nguyen’s petition because both of his arguments are unavailing. First,
it does not appear from Nguyen’s petition or the record in his underlying criminal case that he was
ever actually held liable under the penalty enhancement provision of § 841(b)(1)(C). See United
States v. Nguyen, No. 1:06-cr-234-2 (M.D.N.C. 2006). Thus, Nguyen’s reliance on Burrage is
Second, Nguyen’s claim that he was improperly sentenced under the guidelines represents
an impermissible collateral attack on his sentence. That is because while a federal prisoner may
challenge the legality of his sentence in a motion pursuant to 28 U.S.C. § 2255, he generally may
not do so in a § 2241 petition. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001)
(explaining the distinction between a § 2255 motion and a § 2241 petition). Although Nguyen
attempts to rely on the savings clause of 28 U.S.C. § 2255(e), the Sixth Circuit has made it clear
that a petitioner can only rely on that clause to attack his federal sentence in a § 2241 petition under
very limited circumstances; indeed, the petitioner must show, among other things, that he was
sentenced under the mandatory guidelines regime that existed before the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005), and he must be relying on a case of statutory
interpretation that is retroactive. See Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016). Here,
Nguyen was sentenced after the Supreme Court decided Booker, and he does not appear to be
relying on a retroactive change in statutory interpretation in making his argument about the
sentencing guidelines. [R. 1-6]. Simply put, Nguyen does not meet the requirements set forth in
the Hill case.
Accordingly, IT IS ORDERED that:
Warden Gregory Kizziah is SUBSTITUTED for the United States of America as
the respondent in this proceeding.
Nguyen’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1]
This action is DISMISSED and STRICKEN from the Court’s docket.
A corresponding judgment will be entered this date.
Dated June 14, 2017.
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