United States District Court, D. Hawaii
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
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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. 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
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.
Plea, Sentencing, and Direct Appeal
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
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”]).
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.
First and Second Section 2255 Motions
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. See Dkt. No. 659.
Third Section 2255 Motion
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.
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.