United States v. Chun Mei Tong

• Decision Date: 09 January 2023
• Docket Number: CR. 18-00082 JMS-1,CIV. 22-00423 JMS-KJM
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CHUN MEI TONG, Defendant.
• Court: U.S. District Court — District of Hawaii

UNITED STATES OF AMERICA, Plaintiff,
v.
CHUN MEI TONG, Defendant.

CR. No. 18-00082 JMS-1

CIV. No. 22-00423 JMS-KJM

United States District Court, D. Hawaii

January 9, 2023

ORDER (1) DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE, ECF NO. 160; (2) REFERRING § 2255 MOTION TO THE NINTH CIRCUIT COURT OF APPEALS; AND (3) DENYING MOTION FOR BAIL, ECF NO. 172

J. MICHAEL SEABRIGHT, UNITED STATES DISTRICT JUDGE

I. BACKGROUND

On September 6, 2019, Defendant Chun Mei Tong (“Defendant”) was convicted by a jury on five counts of wire fraud in violation of 18 U.S.C. § 1343 and three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). See ECF Nos. 2, 88.^[1] Defendant was sentenced on January 6, 2020, to a total period of 66-months incarceration and ordered to pay $207,874 in restitution. ECF No. 109. The Ninth Circuit affirmed the court's restitution order

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on January 20, 2022. ECF No. 156.

Defendant sought relief from the court's restitution order in an April 28, 2022 “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (“First § 2255 Motion”). ECF No. 158. The court denied the First § 2255 Motion, determining that relief from a restitution order cannot be brought by way of § 2255. ECF No. 159; see also United States v. Thiele, 314 F.3d 399, 400 (9th Cir. 2002).

On September 20, 2022, Defendant filed a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody for Ineffective Assistance of Counsel” (“Second § 2255 Motion”). ECF No. 160. Defendant then filed a “Motion to Amend ECF No. 160” on October 12, 2022, which the court construed as a supplemental filing in support of the Second § 2255 Motion. ECF Nos. 162 & 163. In its response, the United States did not address the motion's merits, but instead argued that the motion should be referred to the Ninth Circuit as a second or successive § 2255 motion pursuant to 28 U.S.C. § 2255(h). ECF No. 166. The court then requested supplemental briefing on the issue of whether the Second § 2255 Motion should be referred to the Ninth Circuit under § 2255(h). ECF No. 167. Both parties submitted supplemental briefing. ECF Nos. 168 & 174.

After careful consideration, the court determines this court lacks

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jurisdiction over the Second § 2255 Motion and refers the matter to the Ninth Circuit Court of Appeals.

II. ANALYSIS

“A petitioner is generally limited to one motion under § 2255, and may not bring a ‘second or successive motion' unless it meets the exacting standards of 28 U.S.C. § 2255 (h).” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). Section 2255(h) states that:

A second or successive motion must be certified as provided in [28 U.S.C.] section 2244 by a panel of the appropriate court of appeals to contain-(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable

But not all second motions brought under § 2255 are “second or successive.” Magwood v. Peterson, 561 U.S. 320, 344 (2010). Instead, the phrase is a “habeas ‘term of art.'” Id; see also Jones v. United States, 36 F.4th 974, 980 (9th Cir. 2022).

First, to be second or successive, a petition must challenge the same judgment as the earlier petition. Magwood, 561 U.S. at 341-42. Here, Defendant has challenged the same judgment in her first and second petitions.

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