Vu v. United States
2011 U.S. App. LEXIS 11533
| 2d Cir. | 2011Background
- Vu pled guilty to using a facility of interstate commerce in the murder-for-hire context under 18 U.S.C. § 1958(a).
- In the plea agreement, Vu waived any appeal or collateral attack on a sentence of 120 months or less, including related sentencing guideline issues.
- District Court sentenced Vu to 108 months’ imprisonment and 3 years of supervised release, with an obstruction-of-justice enhancement applied to the Guidelines range.
- Seven months after sentencing, Vu filed a § 2255 motion alleging ineffective assistance of sentencing counsel for not filing a direct appeal; the district court denied the motion and COA certification.
- Vu timely appealed; this Court denied a COA and dismissed his appeal in June 2008.
- Vu now seeks authorization to file a successive § 2255 motion challenging the conviction and sentence, based on FOIA-released materials and other arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does an initial unsuccessful §2255 seeking reinstatement render a later §2255 challenge as 'second or successive'? | Vu argues Urinyi and Vasquez control, so it is not successive. | Government contends the prior motion, if unsuccessful, plus the plea terms, render a later motion barred as successive. | Not second or successive; prior motion does not trigger AEDPA successiveness. |
| Do Urinyi and Vasquez control the question of successiveness in this context? | Urinyi/Vasquez support non-successiveness for reinstatement motions. | Urinyi/Vasquez do not control because Vu's initial motion was unsuccessful and finality interests apply. | Urinyi and Vasquez control; reinstatement-based petitions do not count as successive. |
| Should issues of timeliness and waiver be considered in determining successiveness? | Those issues are independent of the successiveness question and do not affect AEDPA analysis. | Timeliness/waiver concerns could impact whether a petition qualifies as a proper successive filing. | Remanded for district court handling; not part of successiveness determination. |
Key Cases Cited
- Urinyi v. United States, 607 F.3d 318 (2d Cir. 2010) (successful reinstatement of direct-appeal rights does not render later §2255 successive)
- Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 2003) (prior petition seeking relief unrelated to conviction does not count as successive)
- Corrao v. United States, 152 F.3d 188 (2d Cir. 1998) (prior petition decided on the merits affects successiveness analysis)
- Muniz v. United States, 236 F.3d 122 (2d Cir. 2001) (procedural posture in AEDPA successive-petition analysis)
- James v. Walsh, 308 F.3d 162 (2d Cir. 2002) (AEDPA successive-petition framework applied in circuit)