United States v. Thao Thi Nguyen
| Decision Date | 21 February 2023 |
| Docket Number | CRIMINAL 01-00314-SOM-13,CIVIL 22-00529 SOM-KJM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. THAO THI NGUYEN, Defendant. |
| Court | U.S. District Court — District of Hawaii |
ORDER DENYING DEFENDANT THAO THI NGUYEN'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Thao Thi Nguyen has moved to vacate her sentence under 28 U.S.C § 2255. See ECF No. 633. She was erroneously released from a state prison nearly 8 years ago, notwithstanding a detainer that should have ensured that she was transferred from the state facility to federal authorities to serve a 12-month prison term imposed when supervised release was revoked in 2006. See ECF No. 634. She argues that it is unjust or unlawful to require her to belatedly serve her federal revocation sentence, or that she should receive credit towards her federal sentence for the time she has spent at liberty.
In response, the Government asserts that the court cannot reach the merits of Nguyen's motion because her request was improperly brought as a 28 U.S.C. § 2255 motion and Nguyen was not in custody at the time of filing.
The Government is correct that Nguyen's request does not fall within 28 U.S.C. § 2255. Accordingly, the court does not address the merits of her claims. The court denies her motion.
In 2002, Thao Thi Nguyen entered into a plea agreement pursuant to which she entered a plea of guilty to having possessed a controlled substance in violation of 21 U.S.C. § 844(a). See ECF No. 333. She was sentenced to 3 years of probation.[1] See ECF No. 424. Nguyen was later found guilty in state court of promoting a dangerous drug in the first and second degree, acts committed while she was on probation in her federal case. See ECF No. 641-2, PagelD# 484-85. As a result of the state conviction and her failure to report it to her federal probation officer, this court revoked Nguyen's federal probation and sentenced her to a term of 12 months of imprisonment, to be served consecutively to her state court sentence. See ECF No. 602, PageID # 149.
Nguyen was then returned to state custody to serve her term of imprisonment for the state conviction. See ECF 641, PageID # 471; ECF No. 634, PageID # 341. Soon thereafter, the U.S. Marshals Office sent a detainer to the State of Hawaii's Department of Public Safety (“DPS”), informing DPS that the “United States District Court for the District of Hawaii ha[d] issued a Judgment and Commitment Order against” Nguyen and requesting that DPS notify the U.S. Marshals Office “[p]rior to the subject's release from [state] custody.” See ECF No. 641, PageID # 471. Despite the issuance of the detainer, state authorities did not notify the U.S. Marshals Office when the state released Nguyen on parole in 2015. See ECF No. 641, PageID # 472.
In June 2021, the U.S. Probation Office notified the U.S. Marshals Office that Nguyen was no longer in state custody. See ECF No. 641-3, PagelD # 493. When the U.S. Attorney's Office for the District of Hawaii learned of Nguyen's status, it informed this court. In December 2022, this court held a series of status conferences to address Nguyen's situation. See ECF Nos. 630, 632, 636. This court noted that a compassionate release motion might be a vehicle for Nguyen's arguments for relief.
On December 21, 2022, Nguyen filed her § 2255 motion. See ECF No. 633. Nguyen urges the court to vacate her sentence “in light of her erroneous time at liberty stemming from government error and/or negligence.” Id. at PageID # 328. In the alternative, she asks the court to apply credit towards her sentence for the time since she should have begun serving her federal revocation sentence. See id. at PageID # 329.
On December 28, 2022, a week after Nguyen had filed this motion, the court imposed a series of bail conditions in her case, including a $10,000 unsecured bond and seven Special Conditions of Release. See ECF No. 636. The court also directed Nguyen to self-surrender at the Federal Detention Center in Honolulu by Monday, March 13, 2023. Id.
At the direction of the court, Nguyen filed a supplemental brief on January 5, 2023. See ECF No. 638. The Government then filed its opposition. See ECF No. 641.
The Government does not address the merits of Nguyen's motion. See ECF No. 641. Rather, it argues that the motion is not properly before the court because 28 U.S.C. § 2255 is an inappropriate vehicle for Nguyen's challenge and because Nguyen was not in custody at the time of filing. See id.
The court first turns[2] to whether Nguyen can use § 2255 to seek vacatur or credit based on her erroneous release from state custody.
The Government argues that Nguyen's motion must be denied because § 2255 is not the proper vehicle for Nguyen's motion. See ECF No. 641, PageID # 480. The court agrees.
A petition under § 2255 must focus on the imposition of the petitioner's sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (“[M]otions to contest the legality of a sentence must be filed under § 2255 ... while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241.”); see also Schulze v. Kobayashi, No. CV 20-00047, 2021 WL 1197000, at *2 (D. Haw. Mar. 29, 2021).
Nguyen's motion does not fall within § 2255. Instead, it focuses entirely on the Government's execution of her sentence. She says not a word about the validity of her sentence, as originally imposed. She focuses only on the failure to transfer her from state to federal custody, an issue that arose long after the federal revocation sentence was imposed.
Courts recognize such motions as challenges to the sentence's execution. See Clark v. Floyd, 80 F.3d 371 (9th Cir. 1996); McPhearson v. Benov, No. 2:09-CV-1889, 2014 WL 1794561 (E.D. Cal. May 6, 2014), aff'd, 613 Fed.Appx. 645 (9th Cir. 2015). The matters are almost always addressed via 28 U.S.C. § 2241, not § 2255.
If a § 2255 motion does not test the imposition of a sentence, the court cannot address the motion's merits. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980); see also United States v. Alfeche, 962 F.Supp. 1282, 1284 (D. Haw. 1996) (); cf. Lay v. Gill, No. 1:12-CV-01250, 2012 WL 6020115, at *1 (E.D. Cal. Dec. 3, 2012), aff'd, 575 Fed.Appx. 816 (9th Cir. 2014) (“[T]o the extent that Petitioner is challenging the sentence itself or the execution of the plea agreement on which the sentence was based, the Court lacks habeas corpus jurisdiction since such challenges must be raised in a petition pursuant to 28 U.S.C. § 2255.”).
When a petitioner uses a § 2255 motion to challenge the execution of a sentence, rather than its imposition, courts within the Ninth Circuit typically deny such a motion.[3] See e.g., United States v. Ponce-Zuniga, No. 10-CR-2238, 2015 WL 12844449, at *1 (S.D. Cal. Feb. 10, 2015); Jawad v. United States, No. 1:06-CR-00365, 2014 WL 4678049 (E.D. Cal. Sept. 19, 2014). This court similarly dismisses Nguyen's motion as unauthorized under § 2255.[4]
There is a second threshold issue that Nguyen's motion fails to overcome. A motion arising under 28 U.S.C. § 2255 is only available to “a prisoner in custody.” As a result, the Ninth Circuit has characterized the custody issue as a threshold issue that “must be addressed before any consideration of the merits.” See United States v. Reves, 774 F.3d 562, 564-65 (9th Cir. 2014); Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1019 & n. 1 (9th Cir. 2014) (); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998) ().
The Government argues that the court cannot reach the merits of Nguyen's motion because she was not in custody at the time she filed her § 2255 motion. See ECF No. 641, PageID # 474. Rather than responding to this argument, Nguyen focuses on her status at the time she submitted her Supplemental Brief. See ECF No. 638, PageID # 459. Even after the court encouraged Nguyen to use her reply to address the issue of custody at the time of filing, see ECF No. 640, she did not do so.
The relevant time frame for purposes of the custody analysis is the time the § 2255 motion was filed. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (); see also Bailey, 599 F.3d at 979 (“The petitioner must be in custody at the time that the petition is filed.”) (internal citations and quotation marks omitted). This is settled law.
The court thus looks to Nguyen's custody status at the time she filed her § 2255 motion to determine whether she satisfies the custody requirement. Nguyen filed this motion on December 21, 2022. See ECF No. 633. At that time, she was not in prison, on supervised release, or on probation or parole in any state or federal system. She was not even subject to the conditions of bail that this court imposed a week later. See ECF No. 636.
A movant need not be in physical custody to satisfy § 2255's custody requirement. See Maleng v. Cook 490 U.S. 488, 491 (1989)(“Our interpretation of the ‘in custody' language has not...
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