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Tran v. United States

United States District Court, D. Hawaii

August 3, 2017

KHANG KIEN TRAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CV. No. 16-00346 DKW-KJM

          ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; AND (2) DENYING MOTION TO HOLD IN ABEYANCE AND FOR LEAVE TO SUPPLEMENT

          Derrick K. Watson, United States District Judge

         INTRODUCTION

         On September 8, 2000, Petitioner Khang Kien Tran was sentenced to a 360-month term of imprisonment for methamphetamine distribution and firearms violations. On June 24, 2016, Tran, proceeding pro se, filed his third Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”), challenging his sentence based on Johnson v. United States, 135 S.Ct. 2551 (2015). Dkt. Nos. 707, 709, 710. Tran also asks the Court to reduce his sentence based on Amendment 794, which amends U.S.S.G. § 3B1.2, and to hold his Section 2255 Motion in abeyance pending the Supreme Court's decision in Sessions v. Dimaya.[1] Dkt. No. 735. After careful consideration of the record and relevant legal authority, the Court denies Tran's Section 2255 Motion and all other pending requests, and declines to issue a certificate of appealability.

         BACKGROUND

         Tran filed his 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”) on June 24, 2016. The Court recounts the factual and procedural matters relevant to Tran's current requests for relief.[2]

         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 (Count 3); (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) (Count 5). See Dkt. No. 434 (7/8/98 Third Superseding 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. Nos. 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 also imposed a five-year term of supervised release on Count 2, and three years for Count 5, also to run concurrently. See Dkt. Nos. 592 (9/8/2000 Minutes) and 600 (10/2/2000 Presentence Investigation Report [“PSR”]).

         Tran appealed on April 16, 2001, challenging the effectiveness of counsel, alleging that the government breached its obligations under the plea agreement and that the court erred in calculating his guideline range. The Ninth Circuit affirmed his conviction and sentence 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 sought reconsideration, 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 transferred Tran's second 2255 Motion to the Ninth Circuit Court of Appeals.[3] See Dkt. No. 659.

         III. Third Section 2255 Motion

         On July 7, 2016, the Court concluded that Tran's current Section 2255 Motion seeking relief pursuant to Johnson was a “second or successive” petition that required certification from the Ninth Circuit Court of Appeals. The Court therefore denied the Section 2255 Motion without prejudice and referred Tran's third Section 2255 Motion and Application to the Ninth Circuit, pursuant to Ninth Circuit Court of Appeals Rule 22-3(a). Dkt. No. 712. On May 10, 2017, the Ninth Circuit granted Tran's Application and instructed the district court to process it as a Section 2255 motion. Dkt. No. 726.

         On June 26, 2017, Tran filed his response to the government's June 6, 2017 opposition to his Section 2255 Motion, and additionally filed a Motion Requesting That This Case Be Held In Abeyance Pending A Decision In The Supreme Court, And For Leave Of Court To Supplement His Existing Motion. Dkt. No. 735. The Court considers each of Tran's requests below.

         STANDARD ...


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