United States v. Tuyen Vu Ngo
700 F. App'x 806
| 10th Cir. | 2017Background
- In 2005 Ngo was indicted and convicted for trafficking 201,688 tablets of MDMA; conviction affirmed on direct appeal and a prior §2255 was denied.
- In 2015 he filed a pro se motion styled as a Federal Rule of Civil Procedure 60(b) motion claiming the indictment misstated the controlled substance as “methlyenedioxymethamphetamine” rather than the Schedule I term “3,4-methlyenedioxymethamphetamine.”
- Ngo argued the alleged defect rendered the indictment jurisdictionally defective, a constructive amendment, and otherwise voided his conviction; he asked the court not to treat the filing as a second or successive §2255 motion.
- Judge Leonard held Rule 60(b) does not apply in criminal cases and, alternatively, that the filing was in substance a second or successive §2255 motion requiring prior circuit authorization under 28 U.S.C. §2244/§2255(h); he declined to transfer for authorization.
- Judge Friot denied reconsideration and precertification, concluded the filing was an unauthorized successive §2255 motion, found transfer not in the interest of justice, and denied a certificate of appealability (COA).
- The Tenth Circuit denied a COA and dismissed the appeal, holding the motion was an unauthorized successive §2255, transfer/precertification was improper, and Ngo failed to show the required standards for successive-matter authorization.
Issues
| Issue | Plaintiff's Argument (Ngo) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Whether a Rule 60(b) filing attacking the indictment is a true Rule 60(b) motion or a successive §2255 motion | The filing is a Rule 60(b) motion attacking habeas proceedings and should not be treated as a new §2255 | The filing substantively attacks the conviction/indictment and thus is a successive §2255 requiring appellate authorization | The court held it was an unauthorized second or successive §2255 motion, not a true Rule 60(b) motion |
| Whether the district court could "precertify" or authorize a successive §2255 motion to the circuit | Requested district-court precertification to allow filing in the circuit | Only a panel of the court of appeals may certify under §2255(h); district court lacks that power | The court held precertification by the district court is improper; authorization must come from the court of appeals |
| Whether the district court should have transferred the motion to the court of appeals for authorization under §1631 | Transfer was necessary to avoid losing a potentially meritorious claim | Transfer is discretionary; not required where claim lacks merit or authorization criteria not met | The court held denial of transfer was not debatable because Ngo’s claim did not meet §2255(h) standards and no risk of losing a meritorious claim existed |
| Whether the newly-claimed defect (omission of “3,4-” prefix) amounts to newly discovered evidence or a new, retroactive constitutional rule under §2255(h) | The omission is newly discovered evidence entitling authorization or shows jurisdictional defect/structural error | The issue is a legal argument available when indicted, not new evidence or a new retroactive rule; does not satisfy §2255(h)(1) or (2) | The court held the omission is not newly discovered evidence nor a new retroactive constitutional rule; §2255(h) standards not met |
Key Cases Cited
- In re Cline, 531 F.3d 1249 (10th Cir. 2008) (purported Rule 60(b) motion treated as unauthorized successive §2255 when it attacked jurisdiction/indictment)
- United States v. Nelson, 465 F.3d 1145 (10th Cir. 2006) (distinguishing true Rule 60(b) habeas procedural challenges from substantive successive §2255 claims)
- United States v. Harper, 545 F.3d 1230 (10th Cir. 2008) (COA required to appeal denial of Rule 59(e) motion challenging a §2255 dismissal)
- Slack v. McDaniel, 529 U.S. 473 (U.S. 2000) (standards for issuing a COA when relief denied on procedural grounds)
- Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005) (appellate court may deny COA on plain procedural bars even if district court did not rely on them)