Nyuon v. United States of America

Filing 28

ORDER denying 27 Motion to Reverse; granting 13 Motion to Dismiss for Failure to State a Claim; adopting 19 Report and Recommendation; overruling 23 Objection to Report and Recommendation.; denying 26 Motion for Hearing. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 4/27/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EMMANUEL WILLIAM NYUON,

4:16-CV-04010-KES

Movant,
vs.
UNITED STATES OF AMERICA,

ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DISMISSING PETITION

Respondent.
INTRODUCTION
Petitioner, Emmanuel William Nyuon, filed a motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Docket 1. The government now
moves to dismiss the petition for failure to state a claim. Docket 13. The matter
was assigned to United States Magistrate Judge Veronica L. Duffy under 28
U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014 standing order.
Magistrate Judge Duffy recommends that the petition be dismissed, Docket 19,
and Nyuon objects. Docket 23. Nyuon also moves for an evidentiary hearing
and to reverse the report and recommendation. Docket 26; Docket 27. For the
following reasons, the court adopts Magistrate Judge Duffy’s report and
recommendation, dismisses Nyuon’s petition, and denies Nyuon’s motions.
FACTUAL BACKGROUND 1
A jury found Nyuon guilty of sex trafficking of a child, and conspiring to
engage in sex trafficking of a child. United States v. Nyuon, 587 F. App’x 346,
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A full recitation of the facts can be found in the report and recommendation.

346 (8th Cir. 2014). The district court sentenced him to a 360–month sentence.
Id. Nyuon appealed, and the Eighth Circuit Court of Appeals affirmed his
conviction. Id.
On January 19, 2016, Nyuon filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. Nyuon argued that his
trial attorney provided ineffective assistance both at trial and on appeal. Id. The
Government moved to dismiss Nyuon’s petition because he had failed to state a
claim and because he had waived certain defenses. Docket 13.
On September 6, 2016, Magistrate Judge Duffy filed her report and
recommendation. Docket 19. She recommended that the Government’s motion
to dismiss be granted. Id. Nyuon was given until September 20, 2016, to file
objections. Id. On September 19, 2016, Nyuon moved to extend this deadline,
Docket 21, and the court granted his motion, extending the deadline to
October 1, 2016. Docket 22. On October 6, 2016, Nyuon filed his objections.
Docket 22. He later filed a motion seeking an evidentiary hearing, Docket 26,
and a motion to reverse the report and recommendation. Docket 27.
STANDARD OF REVIEW
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
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the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
I.

Nyuon’s Objections
Nyuon objects to a number of sections in the report and

recommendation. In objection 1, Nyuon objects to the report and
recommendation as a whole. Docket 23 at 3. He argues that the Government’s
memorandum in support of its motion to dismiss “is largely a verbatim
statement” of the report and recommendation. Id. This is neither true nor a
specific objection. See Fed. R. Civ. P. 72(b). Nyuon states that he discusses his
specific examples in the other objections. Therefore, this objection is overruled.
Nyuon argues in Objections 2, 3, 5-7, 9-17, 19, 20, 22, 23 that certain
statements in the report and recommendation should not be adopted because
they assume evidence not in the record or “lack foundation.” After de novo
review, the court determines that the evidence cited in these statements is in
the record in the form of witness testimony at trial. See CR Dockets 213 & 214.
The factual statements quoted by Nyuon are fairly stated and properly cited in
the report and recommendation.
Nyuon also argues that these statements are hearsay. “ ‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” United
States v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008) (quoting Fed. R. Evid.
801(c)). Because Magistrate Judge Duffy is not a declarant and the report and
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recommendation is not testimony, these statements are not hearsay. Therefore,
these objections are overruled.
In objections 13 and 14, Nyuon argues that certain statements in the
report and recommendation were contradicted on cross-examination. Not only
is that irrelevant to his habeas claims, but this testimony was not contradicted
by cross-examination. Therefore, these objections are overruled.
In objections 9 and 10, Nyuon argues that certain statements in the
report and recommendation were inflammatory and suggest that he is a violent
person. The statements, however, are taken from the evidence presented at
trial. Nyuon also argues in objection 10 that the victim did not testify that she
was scared of him. This is not true, and the report and recommendation
provides an accurate citation to that portion of the victim’s testimony. Docket
19 at 14 (citing CR Docket 213 at 133). Therefore, these objections are
overruled.
In objection 12, Nyuon argues that certain statements in the report and
recommendation were impermissibly suggestive. That portion of the report and
recommendation states the facts of the case; it does not suggest anything. The
portion Nyuon objects to is taken directly from the victim’s testimony at trial
and is properly cited. Therefore, this objection is overruled.
In objection 4, Nyuon argues that the report and recommendation does
not provide certain facts including the facts leading up to his arrest, the
charges he was originally arrested on, information concerning an immigration
hold placed on him while he was incarcerated in the Minnehaha County Jail, or
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information concerning the case being transferred from the state to the federal
government. The report and recommendation does not need to contain these
facts. Their addition would not affect the analysis of Nyuon’s habeas claims,
and he does not explain why they are necessary. Therefore, this objection is
overruled.
In objection 5, Nyuon argues that the statement in the report and
recommendation that “Mr. Statom made the referral because the photographs
appeared to depict a girl who was under the age of majority” assumed facts not
in the record. Docket 19 at 7-8. Statom, an employee at Backpage.com, on
which Nyuon posted ads in order to traffic the victim, actually only testified
that the person in the ad “might have been young[.]” CR Docket 213 at 23. This
difference does not affect the analysis of Nyuon’s habeas claims. Therefore, this
objection is overruled.
In objection 7, Nyuon argues that the statement “Mr. Eirinberg objected
several times; then he asked for and received a standing objection” should be
struck from the report and recommendation because it fails to state to what
Eirinberg received a standing objection. Docket 19 at 13. Eirinberg asked for
and received a standing objection to the relevancy of S.J.’s testimony
concerning her family life and social habits. CR Docket 213 at 113. This
specification does not affect the analysis of Nyuon’s habeas claims. Therefore,
this objection is overruled.
In objection 8, Nyuon argues that the statement “He took them to a
barbeque at some apartments on the east side of Sioux Falls” lacks specificity
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and “some apartments” must be replaced with a more specific term. Docket 19
at 13. “[S]ome apartments on the east side” is how S.J. described that
destination in her testimony, and no further information is necessary.
Therefore, this objection is overruled.
In objection 18, Nyuon argues that the statement that Amber Traversie
“was a reluctant witness, appearing via subpoena” was “misleading and
misconstrue[d] the facts.” Docket 19 at 20; Docket 23 at 13. Nyuon argues that
Traversie was not “reluctant” but was forced to testify under the “threat of
prosecution in this case.” Docket 23 at 13. Traversie testified that she did not
want to testify in court and that she was subpoenaed. CR Docket 214 at 54.
The court issued an arrest warrant for Traversie. CR Docket 183. While
Traversie testified that she had been threatened with prosecution, those threats
were made during the investigation and in order to convince Traversie to help
in the investigation. See Docket 214 at 70-72. When asked if she would be
arrested if she did not say what the prosecution wanted, Traversie said she did
not know. Id. at 75. A subpoena was the instrument by which Traversie was
forced to testify, and Nyuon does not explain why he believes Traversie was
threatened with prosecution for the crimes he was tried for if she did not
testify.
Nyuon and Magistrate Judge Duffy described the same fact in different
ways, and this does not affect Nyuon’s habeas claims. Even if Traversie was
forced to testify, Eirinberg elicited this information in his cross-examination of
Traversie, and he was not ineffective. Therefore, this objection is overruled.
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In objection 24, Nyuon argues that Magistrate Judge Duffy should not
have used the term “etc.” when describing the ways in which Nyuon disagreed
with his trial counsel. He argues that he told Eirinberg that he wanted to
testify, but Eirinberg did not call him as a witness. Nyuon argues that
Magistrate Judge Duffy should have responded to this argument in the report
and recommendation. Nyuon did not raise this argument in his petition or any
document filed before Magistrate Judge Duffy filed the report and
recommendation. In the memorandum supporting his petition, Nyuon
complains that Eirinberg did not “Properly Re-Dact The Video Interview For
Trial As Petitioner Agreed Not To Take The Stand If Counsel Play The
Involuntary Confession To The Jury.” Docket 2 at 8. He did not clearly raise
this claim in his petition.
“A criminal defendant has a constitutional right to testify on [his] behalf.”
Berkovitz v. Minnesota, 505 F.3d 827, 828 (8th Cir. 2007) (citing Rock v.
Arkansas, 483 U.S. 44, 49-53 (1987)). “Only the defendant may waive [his]
right to testify, and the waiver must be made voluntarily and knowingly.” Id.
(citing Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998). In Berkovitz, the
Eighth Circuit Court of Appeals found that the defendant “voluntarily and
knowingly waived her right to testify. She was not unduly influenced or coerced
when her trial counsels stated that they were a ‘hundred five percent sure’ that
she should not testify and ‘[i]f we should allow you to testify we are going to
lose.’ ” Id. Trial counsel told Berkovitz she had the right to testify, the trial
court made sure that she understood her rights, and she remained silent when
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her trial counsel rested. Id. The court in Berkovitz quoted Frey as stating that it
had “previously held that a knowing and voluntary waiver of the right may be
found based on a defendant's silence when his counsel rests without calling
him to testify[.]” Id. (citing Frey, 151 F.3d at 898).
Nyuon claims that he was denied the right to testify in his own defense.
He appears to allege a violation of his stand alone right to testify under the
Fourteenth, Sixth, and Fifth Amendments, see Frey, 151 F.3d 893, 897 (citing
Rock, 483 U.S. at 51–53), and a violation of his right to effective assistance of
counsel because Eirinberg failed to protect his rights. Docket 25 at 3. Both
claims fail because Nyuon voluntarily and knowingly waived his right to testify.
Whether Nyuon would testify was discussed numerous times during the
trial. In a bench conference before Eirinberg began his case, Eirinberg told the
court that he was not sure if Nyuon would testify, but he said he would talk to
Nyuon about it over the lunch hour. Docket 214 at 103-04. Later during
another bench conference, Eirinberg told the court that he had discussed the
issue with Nyuon over the lunch break and advised him not to testify. Id. at
109. He also told the court that Nyuon accepted this advice. Id.
At the end of the defense’s case, the issue was raised again. When
Eirinberg informed the court that he had no other witnesses, he stated that he
did not know whether his client wanted to take the stand. Docket 301-2 at 155.
If his client wanted to testify, this would be done against his advice. Id. After a
break during which Eirinberg discussed the issue with Nyuon, Eirinberg
informed the court that Nyuon would not testify. Id at 156. The court asked
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Eirinberg, “Did you want to put anything on the record about your client not
testifying?” Id. Eirinberg answered yes and stated:
I want the record to reflect that I've had many conversations with
my client, and I consistently advised him not to exercise his right
to get up and testify. I think it's in his best interest that he does
not, not only for purposes of reaching a result in this criminal trial,
but also for purposes of sentencing should he be convicted on
either offense. He just informed me he will not get up and testify.
Id. The court then asked Nyuon, “that's what you've decided to do is to not
testify?” and Nyuon answered, “Yes, Your Honor.” Id. Nyuon voluntarily and
knowingly waived his right to testify.
In the memorandum supporting his petition, Nyuon claims that he was
willing to forgo testifying if a video of part of his interview with Charla Aramayo
was shown during trial. Docket 2 at 8. This is borne out in the record. In a
bench conference during trial, Eirinberg told the court that Nyuon agreed not
to testify if part of the video was shown. Docket 214 at 109. The video was
shown by the defense in two sections. Id. at 121, 124. This supports the
conclusion that Nyuon voluntarily and knowingly waived his right to testify.
During the evidentiary hearing concerning Nyuon’s motion to suppress,
the court also brought up his right to testify. Eirinberg stated that he wanted to
put Nyon on the stand and ask only one question. Docket 117 at 66. The court
asked whether Eirinberg had discussed the Fifth Amendment with Nyuon, and
Eirinberg answered that yes, they had discussed it. Id. at 66-67.
All of this shows that Nyuon was aware of his right to testify. He brought
it up numerous times, but decided in the end, on the advice of counsel, not to
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testify. He told the court directly that this was his decision. Therefore, he was
not denied the right to testify in his defense. Because he was not denied this
right, and because the record is clear that Eirinberg discussed this right with
Nyuon numerous times, Nyuon’s right to effective assistance of counsel was
also not violated. Therefore, his objection is overruled.
II.

Subsequent Filings
Nyuon raises additional new claims after the report and recommendation

was filed. Because he raised the denial of his right to testify in his objections to
the report and recommendation, the court already analyzed that argument and
overruled that objection.
Nyuon also raises other claims that were not raised in his direct appeal.
“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.” McNeal
v. United States, 249 F.3d 747, 749 (8th Cir. 2001) (citing Bousley v. United
States, 523 U.S. 614, 622 (1998)). Nyuon does not make an argument to
explain his default other than to say Eirinberg failed to raise the issues on
appeal. Therefore, to the extent Nyuon raises claims other than ineffective
assistance of counsel, his claims are dismissed as defaulted.
Nyuon’s new claims are arguably ineffective assistance of counsel claims.
In order to establish ineffective assistance of counsel, a petitioner must satisfy
the two-pronged standard articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the [petitioner] must
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show that counsel's performance was deficient.” Id. This “performance prong”
requires a petitioner to “show that counsel's representation fell below an
objective standard of reasonableness.” Id. at 687–88.
Next, the petitioner must “show that he was prejudiced by counsel's
error, and ‘that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.’ ”
Williams v. United States, 452 F.3d 1009, 1014 (8th Cir. 2006) (quoting
Anderson v. United States, 393 F.3d 749, 752–53 (8th Cir. 2005)). “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
Nyuon did not raise these claims in his direct appeal. Appellate courts,
however, generally refuse to review claims of ineffective assistance of counsel
on direct appeal; such claims are, therefore, properly addressed in a petition
under 28 U.S.C. § 2255. See United States v. Lee, 374 F.3d 637, 654 (8th Cir.
2004) (ineffective assistance of counsel claims are not generally cognizable on
direct appeal and will be heard only to prevent a miscarriage of justice or in
cases where the district court has developed a record on the issue). The court
will therefore address Nyuon’s new claims to the extent they are claims of
ineffective assistance of counsel.
A.

Vienna Convention

Nyuon claims that Eirinberg provided ineffective assistance of counsel
because he did not contact the South Sudanese representative pursuant to
Article 36 of the Vienna Convention on Consular Relations. Nyuon’s claim that
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Eirinberg was ineffective on appeal is dismissed because Nyuon represented
himself on appeal. Nyuon also claims Eirinberg was ineffective for failing to
raise this issue in the district court.
The issue was addressed in magistrate court. During Nyuon’s initial
appearance hearing, the court stated:
[W]e may need to give the consulate notification of you, Mr. Nyuon.
I'm not sure if you are a citizen of the United States or not.
But if you are not a citizen of the United States, you have the right
to have your country notified about this charge. Upon notification,
your country could decide whether to come and help you defend
against the charge. If you are not a citizen of the United States,
and if you want to notify your country about this charge, all you
need to do is tell your lawyer. He knows how to make the
notification happen.
Docket 298 at 10. Therefore, Nyuon cannot claim that Eirinberg was ineffective
for failing to raise the issue of consular notification to the court because the
court itself raised the issue. 2
Eirinberg’s assistance was not unconstitutionally ineffective because the
Vienna Convention places burdens on the state rather than defense counsel.
“Article 36 of the Vienna Convention on Consular Relations requires authorities
to inform detained or arrested foreign nationals that they may have their
consulates notified of their status.” United States v. Santos, 235 F.3d 1105,
Nyuon makes the same claim under the Federal Rules of Criminal Procedure
which state that the judge must inform “a defendant who is not a United States
citizen [that he] may request that an attorney for the government or a federal
law enforcement official notify a consular officer from the defendant's country
of nationality that the defendant has been arrested[.]” Fed. R. Crim. P.
5(d)(1)(F). This is not a claim of ineffective assistance of counsel, and Nyuon did
not raise it in his direct appeal. Therefore, it is defaulted. The court also
notified Nyuon of this right during his initial appearance. This claim is
therefore dismissed.
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2

1107 (8th Cir. 2000). Nyuon was told that he had the right to contact his
consulate by the court. Therefore, Eirinberg was not unconstitutionally
ineffective for allegedly failing to inform Nyuon of his rights.
Finally, it is doubtful that Nyuon had rights under the Vienna
Convention. In his Supplement, he argues that Eirinberg should have
contacted, or helped him contact, the South Sudanese consulate. South
Sudan, however, is not a signatory to that treaty. See United Nations Treaty
Collection, Chapter III: Privileges and Immunities, Diplomatic and Consular
Relations, Etc., https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&
mtdsg_no=III-6&chapter=3&lang=en (last visited April 20, 2017). Therefore,
there was no need to contact the consulate.
B.

Prosecutorial Misconduct

Nyuon claims that Eirinberg was unconstitutionally ineffective for failing
to object to the prosecutor’s alleged misconduct. “ ‘As a general rule,
prosecutorial misconduct does not merit federal habeas relief unless the
misconduct infected the trial with enough unfairness to render [a] petitioner’s
conviction a denial of due process.’ ” Stringer v. Hedgepeth, 280 F.3d 826, 829
(8th Cir. 2002) (quoting Louisell v. Dir. of Iowa Dep’t. of Corr., 178 F.3d 1019,
1023 (8th Cir. 1999)). “A petitioner ‘must show that there is a reasonable
probability that the error complained of affected the outcome of the trial—i.e.,
that absent the alleged impropriety the verdict probably would have been
different.’ ” Id. (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995)).

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Nyuon argues that the prosecutors in his case committed misconduct
because they allowed witnesses to commit perjury during his trial. He does not,
however, provide any evidence that perjury was committed. He argues that the
government’s witnesses provided contradictory testimony in their direct and
cross examinations. Docket 26 at 4. As stated above, however, this is not true.
Nyuon also argues that he should be granted an evidentiary hearing so
that he can show prosecutorial misconduct. More than his own baseless
suspicion is required to grant a hearing. Nyuon has offered no plausible
explanation as to how the prosecutors’ actions violated his constitutional
rights. Therefore, Eirinberg was not unconstitutionally ineffective for failing to
object, and this claim is dismissed.
C.

Hearing under Federal Rule of Criminal Procedure 5.1

Nyuon claims that Eirinberg was unconstitutionally ineffective because
he waived Nyuon’s preliminary hearing under Federal Rule of Criminal
Procedure 5. Nyuon, however, was indicted by a grand jury, see CR Docket
119, and therefore was not entitled to a preliminary hearing. Fed. R. Crim. P.
5.1(a)(2); United States v. Ortiz-Martinez, 188 F. App’x 530, 531 (8th Cir. 2006).
Because Nyuon was not entitled to a preliminary hearing, Eirinberg was not
ineffective, and this claim is dismissed.
D.

Duplicitous Indictment

Nyuon claims that Eirinberg was unconstitutionally ineffective because
he did not argue that the indictment against Nyuon was duplicitous. Docket 27
at 2. “ ‘Duplicity’ is the joining in a single count of two or more distinct and
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separate offenses.” United States v. Moore, 184 F.3d 790, 793 (8th Cir. 1999)
(citation omitted). “The risk behind a duplicitous charge is that a jury may
convict the defendant without unanimous agreement on a particular offense.”
Id.
Nyuon was found “guilty of sex trafficking of a child, and conspiring to
engage in sex trafficking of a child, in violation of 18 U.S.C. §§ 2, 1591(a)-(c),
and 1594(c).” Nyuon, 587 F. App’x 346. He does not explain which count was
duplicitous. Sex trafficking of a child under 18 U.S.C. § 1591 merely
enumerates more than one way of committing the offense, which does not raise
duplicity concerns, Moore, 184 F.3d at 793, and 18 U.S.C. § 1594 is the
conspiracy statute. There was no duplicity issue to which it was deficient for
Eirinberg to fail to object. Therefore, this claim is dismissed.
Nyuon cites Blockburger v. United States, 284 U.S. 299 (1932), in support
of his argument. Blockburger concerned five violations of the Harrison Narcotic
Act. Id. at 300-01. Petitioner argued that two of the sales constituted a single
offense because they were made to the same person. Id. at 301. The United
States Supreme Court disagreed, finding that the Narcotic Act made each sale
illegal, and the distinct sales were therefore distinct violations. Id. at 302.
Petitioner next argued that one penalty could be imposed for selling
drugs not in their original package and selling them without a written order
because these could apply to the same sale. Id. at 301. The Court found that
the statute created two distinct offenses because each offense required proof of
a different element. Id. at 304. It held that petitioner’s sale could violate both
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sections at once and constitutes two offenses. Id. Blockburger does not support
Nyuon’s argument. If anything, its finding that the conviction was valid
supports the validity of Nyuon’s conviction.
E.

Multiplicitous Indictment

Nyuon claims that Eirinberg was unconstitutionally ineffective because
he did not argue that the indictment against him was multiplicitous. Docket 27
at 3. “An indictment is multiplicitous if it charges a single offense in multiple
counts.” United States v. Roy, 408 F.3d 484, 491 (8th Cir. 2005) (citing United
States v. Christner, 66 F.3d 922, 927 (8th Cir. 1995)). “Multiple punishments
for the same criminal offense are barred by the Double Jeopardy Clause of the
Fifth Amendment.” Id. (citing United States v. Bennett, 44 F.3d 1364, 1368
(8th Cir. 1995)). To show a violation of the Double Jeopardy Clause, “ ‘a
defendant must show that the two offenses charged are in law and fact the
same offense.’ ” Id. (quoting Bennett, 44 F.3d at 1368).
Nyuon does not explain which counts he claims were multiplicious or
how they were multiplicious. He argues that he explained this in his petition,
but he did not. Without this, Nyuon’s claim is merely conclusory. Broad,
conclusory allegations do not support claims of ineffective assistance of
counsel. Gordon v. United States, 27 F.3d 571 (8th Cir. 1994). Therefore,
Nyuon’s claim is dismissed.
F.

Rule 29 Motion

After the defense rested, Eirinberg moved for a judgment of acquittal on
both charges under Federal Rule of Criminal Procedure 29. Docket 301-2 at
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158. The court denied this motion. Id. at 159-60. Nyuon now argues that this
motion was improperly denied because “all the essential elements of the
conviction for 18 U.S.C. §1591 were not met, beyond a reasonable doubt.”
Docket 26 at 5.
A claim that all of a crime’s statutory elements were not proven is not a
constitutional, jurisdictional, or otherwise reviewable claim under § 2255.
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citations omitted).
“A motion under § 2255 is not a substitute for a direct appeal[.]” Id. (citations
omitted). Nyuon does not raise this as a claim of ineffective assistance, and he
cannot do so because Eirinberg did in fact move for a judgment of acquittal
under Rule 29. Therefore, Nyuon’s claim is dismissed.
Nyuon also argues that the government did not prove the elements of the
crime because the witnesses provided contradictory testimony. Docket 26 at 5.
As discussed above, this is not true, and Nyuon does not point to any specific
evidence that supports his argument for a reconsideration of the denial of his
motion under Rule 29.
II.

Evidentiary Hearing
“A district court may deny an evidentiary hearing where (1) accepting the

petitioner's allegations as true, the petitioner is not entitled 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.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). “ ‘No hearing is
17

required, however, where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.’ ” Franco v.
United States, 762 F.3d 761, 763 (8th Cir. 2014) (quoting Anjulo–Lopez v.
United States, 541 F.3d 814, 817 (8th Cir. 2008)).
Here, an evidentiary hearing is not required. Nyuon’s objections concern
factual issues in the report and recommendation that are resolved with
reference to the record as it already stands. Most of Nyuon’s claims are
conclusory and unexplained. The remainder can be decided without further
development of the record. There is no issue of fact or credibility to be
determined in an evidentiary hearing. Therefore, Nyuon’s request for an
evidentiary hearing is denied.
III.

Certificate of Appealability
Before denial of a § 2255 motion may be appealed, a petitioner must first

obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
finds that Nyuon has not made a substantial showing that the district court’s
assessments of his claims are debatable or wrong. Consequently, a certificate
of appealability is not issued.
Thus, it is ORDERED
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1. Nyuon’s objections to the report and recommendation (Docket 23) are
overruled.
2. The report and recommendation (Docket 19) is adopted in full.
3. Respondent’s motion to dismiss (Docket 13) is granted. Nyuon’s
motion to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255 (Docket 1) is dismissed.
4. A certificate of appealability is not issued.
5. Nyuon’s motion for an evidentiary hearing (Docket 26) is denied.
6. Nyuon’s motion to reverse the report and recommendation (Docket 27)
is denied.
Dated April 27, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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