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Tran v. United States

United States District Court, D. Hawaii

July 7, 2016

KHANG KIEN TRAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CR. No. 95-00151-5 DKW

          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)

          Dcrrick K. Watson United States District Judge

         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).

         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” 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.

         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 ...


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