Nguyen v. United States of America
ORDER Granting Petitioner's Motion for Relief From Judgment 46 , Denying as Moot Petitioner's Motion for Relief From Judgment 45 and Setting a Briefing Schedule signed by Judge Charles N Clevert, Jr on 10/17/16. (cc: all counsel; via US Mail to Petitioner) ((cef), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DRAKENOLD TUAN NGUYEN,
Case No. 10-C-1038
UNITED STATES OF AMERICA,
ORDER GRANTING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT
(DOC. 46), DENYING AS MOOT PETITIONER’S MOTION FOR RELIEF FROM
JUDGMENT (DOC. 45) AND SETTING BRIEFING SCHEDULE
On June 30, 2016, the Seventh Circuit Court of Appeals transferred Drakenold
Nguyen’s motion for an order granting permission to reinstate direct appeal rights,
construing it as a motion for relief from judgment under Rule 60 of the Federal Rules of
Civil Procedure. This court denied Nguyen’s motion under 28 U.S.C. § 2255 after
concluding that he had waived his claims by pleading guilty and could not otherwise
establish that he was prejudiced due to ineffective assistance of counsel. However, after
the appeal was filed, a court reporter responding to Nguyen’s request for a transcript
discovered that a portion of the sentencing hearing had been sealed. The sealed portion
of the sentencing hearing is cited as a basis for Nguyen’s claim that his plea was
involuntary and counsel was ineffective.
Briefly, Nguyen entered guilty pleas to one count of conspiracy to distribute and to
possess with intent to distribute more than 1,000 kilograms of marijuana and one count of
conspiracy to commit money laundering. (Case Nos. 05-CR-226 and 06-CR-163). On
October 13, 2006, he was sentenced to a concurrent term of 240 months imprisonment.
Due to a clerical error, Nguyen’s notice of appeal was not filed before the time to do so had
run. Therefore, on May 26, 2009, the court entered an amended judgment imposing the
same concurrent 240 month prison term.
On direct appeal, Nguyen argued that his guilty plea was involuntary and that the
government rendered it so by failing to inform the court of the nature and extent of his
cooperation and by violating a purported agreement to limit his prison sentence to ten
years. Additionally, he maintained that counsel was ineffective in negotiating the plea. The
Seventh Circuit dismissed the appeal concluding that any challenge to the guilty plea would
be frivolous, and that the unambiguous waiver of his right to appeal was enforceable. The
United States Supreme Court denied his petition for writ of certiorari.
In his § 2255 motion, Nguyen asserted that his plea was not knowing or voluntary,
that the government breached its plea agreement, that the court erred when imposing a
sentencing enhancement pursuant to U.S.S.G. § 3B1.1, and that counsel was ineffective.
In denying the motion, the court cited the waiver of appeal rights in paragraph 35 of the
plea agreement, Nguyen’s discussion of the waiver during the plea colloquy, and the
Seventh Circuit’s decision on appeal.
With respect to the ineffective assistance of counsel claims, Nguyen argued, among
other things, that counsel misinformed him of the possible penalties he would face after
pleading guilty “by deluding him into thinking his risk was minimized to that which was
outlined in the proffer letter counsel had him sign.” The court directed Nguyen to the
acknowledgment in his plea agreement that the Wisconsin indictment carried a maximum
of life in prison and the Michigan indictment carried a maximum of 20 years. There was
nothing before this court suggesting that promises were made to Nguyen by anyone
involved in the case. Indeed, the court stated that the only proffer letter of which the court
was aware was submitted by Nguyen on direct appeal and did not reference specific
penalties or otherwise conflict with the plain language of the plea agreement. Accordingly,
the § 2255 motion was denied, and Nguyen appealed. The Seventh Circuit has since
construed Nguyen’s motion to reinstate his appeal rights as a Rule 60(b) motion and has
transferred the same to this court.
A district court has discretion to reopen proceedings under Fed. R. Civ. P. 60(b)(3)
for “fraud, misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P.
60(b)(3); Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir. 2010). However, a Rule
60(b)(3) motion must be made within a reasonable time but no more than a year after the
judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c)(1). Additionally,
Fed. R. Civ. P. 60(b)(6) allows the court to grant relief from judgment for “any other reason
that justifies relief.” Finally, Fed. R. Civ. P. 60(d)(3) authorizes every district court,
independent of Rule 60(b), to “set aside a judgment for fraud on the court” no matter when
the fraud comes to light. Simple perjury does not allow relief under Rule 60(d)(3); however,
“a cooperative endeavor by multiple police officers and their lawyers to suppress the truth
might do so.” Moore v. Burge, 771 F.3d 444, 448 (7th Cir. 2014). A party seeking to set
aside a judgment under Rule 60(d)(3) must prove fraud by clear and convincing evidence.
Wickens, 620 F.3d at 759.
In transferring Nguyen’s motion to this court, the Seventh Circuit focused on new
evidence of “proffer letters presented during his plea hearing, the transcript of which had
been mistakenly sealed in the district court.” According to the Seventh Circuit, “Nguyen
attempted to unseal the transcripts for nearly ten years, despite the district court’s
insistence that there were no sealed documents in the record.”1 As a consequence, the
Seventh Circuit instructed this court to, if appropriate, conduct an evidentiary hearing to
determine if the circumstances surrounding the sealed transcript operated as fraud on the
district court, see Fed. R. Civ. P. 60(b)(3), (b)(6), (d)(3), and whether its review of an
incomplete record supported its decision to enter judgment against Nguyen.”
Nguyen argues that because the allocution was not recorded in the minutes or on
the docket, appellate counsel could not locate the basis for Nguyen’s claim. In his motion
to withdraw, counsel stated:
Mr. Nguyen maintains that there was a proffer letter signed by the parties
which contained an agreement to this specific sentence. However, there is
no evidence of such an agreement in the record.
(Doc. 45, Ex. E.) In a footnote, counsel explained that he was aware of the November 1,
2005, proffer letter which did not contain any promise for a specific sentence and that he
could not locate any second proffer letter signed by Nguyen, the government, and defense
The relevant portion of the full transcript, which was first docketed on July 31, 2015,
states as follows:
THE DEFENDANT: In a short period of time I was act foolish, stupid, and ruined
my life for just some – a quick cash.
Since I’ve been in the county jail I’m still learning and reading
and writing my scripts.
Nguyen filed two m otions to unseal all records and proceedings in Case No. 10-C-1038. His first
m otion was filed on Novem ber 22, 2013. The court denied these m otions on May 5, 2014, and May 14, 2015,
because it did not appear from the docket that there were unsealed docum ents in Case Nos. 05-CR-228 or
06-CR-163. As soon as the court reporter’s discovery revealed the clerical error, the court granted Nguyen’s
m otion for guidance on July 21, 2015, and unsealed all portions of the sentencing.
That’s my understanding, Your Honor. My first attorney, Mr.
Brennan, came to me. Often we would sign the proffer letters.
And when Mr. Cutrone – and I changed to Mr. Cutrone
because financially can’t afford Mr. Brennan.
He also offered me – Mr. Cutrone also come to me with proffer
letters. What I understand is it guarantee me at the mandatory
minimum of the level, and I sign it.
I spent a lot of times for debriefing what I have done.
At this point that’s what I understanding. When I start – sign
the plea, I understand the liability I have. At least that’s a
[Indiscernible] and up today I’m facing 240 months. That
And one thing I just wanted to make the records that – to
ensure [Indiscernible] understand, I promise to cooperate to
the best and [Indiscernible] give them in the future. I still help
the government every which way I can in the futures.
Case No. 05-CR-228 (Doc. 109). Nguyen’s motion to reinstate asserts that the parties
discussed the “proffer letter agreement” off the record but in chambers, and that placed
undue pressure on him to plead.
The court does not believe an evidentiary hearing is required with respect to the
motion for relief from judgment. The motion was not brought within a year of the order or
judgment as required for motions brought under Rule 60(b)(3). Fraud on the court did not
prevent Nguyen from accessing the relevant portion of the sentencing transcript. Rather,
it was a clerical error that the sealed portion of the transcript was not referenced in the
minutes from the sentencing or otherwise reflected on the docket. As indicated by the
court reporter on June 30, 2015, “neither the docket nor the minutes referenced the sealing
of the allocution during the sentencing proceeding.” Consequently, the “fact of the sealing
was not evidence and only learned of when preparing the transcript pursuant to” the
request of Nguyen’s brother. (Doc. 56, Ex. G.) As soon as this clerical error was brought
to the court’s attention, the portion of the sentencing record was unsealed and made
The Seventh Circuit instructed this court to consider Fed. R. Civ. P. 60(b)(3),(6), and
60(d)(3) upon remand.2 Therefore, now in the absence of fraud respecting the sealed
transcript, the court is left to consider Fed. R. Civ. P. 60(b)(6), a catchall provision of the
procedural rules which applies when a motion is brought within a reasonable time. The
court finds that this is the type of extraordinary circumstance worthy of 60(b)(6) relief.
Justice demands that Nguyen’s motion be decided on a complete record with all relevant
evidence before the court, particularly where Nguyen raised the arguments in a timely
manner but could not support them with a citation to the record until the error was revealed
to the court in 2015. Mindful that Fed. R. Civ. P. 60(b)(6) is typically reserved for
extraordinary circumstances that rarely occur in the habeas context, see Arrieta v.
Battaglia, 461 F.3d 861, 865 (7th Cir. 2006), the court finds that the circumstances
presented in this case warrant additional consideration of Nguyen’s § 2255 motion.
The court further notes that Nguyen has asked to reinstate his appeal rights and that
the government filed a response to the § 2255 motion on July 19, 2011. However, the
Although Rule 60(a) provides for corrections based on clerical m istakes, the Seventh Circuit has held
that “[i]f the flaw lies in the translation of the original m eaning to the judgm ent, then Rule 60(a) allows a
correction; if the judgm ent captures the original m eaning but is infected by error, the parties m ust seek
another source of authority to correct the m istake.” W esco, 880 F.2d at 984 (citing United States v. Griffin,
782 F.2d 1393, 1396-97 (7th Cir. 1986)). Here, the judgm ent captured the original m eaning but the court was
unaware of the sealed transcript upon which Nguyen relies in support of his argum ent. Meanwhile, Fed. R.
Civ. P. 60(b)(1) provides relief from final judgm ents that are the product of “m istake, inadvertence, surprise
or excusable neglect;” however, the Seventh Circuit’s instructions to this court were clear. The court notes
that the absence of any reference on the docket to the sealed portion of the sentencing hearing was a clear
clerical error unrelated to any action by the parties or counsel.
earlier response did not address Nguyen’s statement at sentencing regarding the proffer
letters and Nguyen’s surprise that he could be sentenced to 240 months. Consequently,
Nguyen’s comments, in combination with paragraph 40 of the plea agreement, require
additional briefing, with due consideration of the issues that Nguyen raised on direct appeal
and in his § 2255 motion. Now, therefore,
IT IS ORDERED that Drakenold Nguyen’s motion for relief from judgment is granted
pursuant to Rule 60(b)(6). (Doc. 46.)
IT IS FURTHER ORDERED that Nguyen’s initial motion for relief from judgment is
denied as moot. (Doc. 45.)
IT IS FURTHER ORDERED that on or before November 11, 2016, the government
shall respond to Nguyen’s assertions that the previously sealed portion of the sentencing
transcript references multiple proffer letters and an agreement that it will ask that Nguyen
be sentenced to a mandatory minimum term rather than 240 months.
IT IS FURTHER ORDERED that Nguyen may file a reply to the government’s
response on or before December 9, 2016.
Dated at Milwaukee, Wisconsin, this 17th day of October, 2016.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE
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