FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6361
(D.C. No. 5:05-CR-00168-F-4)
TUYEN VU NGO, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
_________________________________
In 2005, Tuyen Vu Ngo was indicted on two counts of drug trafficking
involving methlyenedioxymethamphetamine (MDMA), commonly known as ecstasy.
He stipulated at trial that the 201,688 MDMA tablets seized by law enforcement
officials contained 3,4-methlyenedioxymethamphetamine. He was convicted on both
charges and sentenced to twenty years’ imprisonment. His conviction was affirmed
on direct appeal. United States v. Ngo, 226 F. App’x 819 (10th Cir. 2007). He did
not challenge his sentence on direct appeal, but he later filed a motion to vacate
under 28 U.S.C. § 2255, which the district court denied. This court denied him a
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
certificate of appealability (COA). United States v. Ngo, 307 F. App’x 242 (10th Cir.
2009).
In 2015, Mr. Ngo filed a pro se motion purportedly based on Federal Rule of
Civil Procedure 60(b). He argued that the indictment did not identify a controlled
substance listed in Schedule I of 21 U.S.C. § 812 because it specified
methlyenedioxymethamphetamine, not 3,4-methlyenedioxymethamphetamine, as it is
listed in Schedule I, see 21 C.F.R. § 1308.11(d)(11) (including
3,4-methlyenedioxymethamphetamine in Schedule I). He claimed that he first
became aware of this “newly discovered evidence” in November 2014. He contended
that the alleged flaw in the indictment revealed jurisdictional defects, structural error,
a constructively amended indictment, a fatal variance, a defective jury instruction on
reasonable doubt, and a defective jury verdict, all of which entitled him to a ruling
under Federal Rule of Civil Procedure 60(b)(2), (b)(4), and (b)(6) that his conviction
was void for lack of jurisdiction or vagueness. Mr. Ngo requested that the court not
construe the motion as a second or successive § 2255 motion. He later moved to file
a supplemental amendment to his motion.
The Honorable Tim Leonard granted Mr. Ngo’s motion to file an amendment
to his purported Rule 60(b) motion but ruled that the court lacked jurisdiction over
the motion because Rule 60(b) does not apply in a criminal case. In the alternative,
Judge Leonard reasoned that if construed as a § 2255 motion rather than a true
Rule 60(b) motion, the court would still lack jurisdiction given Mr. Ngo’s failure to
first obtain the certification from this court to file a second or successive § 2255
2
motion that is required under 28 U.S.C. § 2255(h). Judge Leonard added that it was
“not in the interest of justice to transfer [the motion to this court] for authorization.”
R., Vol. I at 18 n.2.
Mr. Ngo then filed a motion asking the district court to (1) correct, under
Federal Rule of Criminal Procedure 36 and/or Civil Rule 60(a), the use of the wrong
case number in the caption of Judge Leonard’s order; (2) reconsider the disposition
of the purported Rule 60(b) motion because Judge Leonard had permitted Mr. Ngo to
amend the motion under Federal Rule of Civil Procedure 15(a)(1) but then held that
Rule 60(b) was inapplicable in a criminal matter; (3) reconsider the request for a
COA he made in his purported Rule 60(b) motion; and (4) precertify his purported
Rule 60(b) motion to this court in the event it was construed as a second or
successive § 2255 motion.
The case was reassigned to the Honorable Stephen P. Friot, who granted the
motion to correct the case number that appeared in Judge Leonard’s order but
otherwise denied relief. Judge Friot observed that in requesting reconsideration of
the jurisdictional dismissal of his purported Rule 60(b) motion, Mr. Ngo sought to
change the substance of the dismissal. But that sort of relief was inappropriate under
Federal Rule of Criminal Procedure 36 and Federal Rule of Civil Procedure 60(a),
which are used to correct inadvertent ministerial errors.
3
Judge Friot next considered whether Mr. Ngo was entitled to relief under
Fed. R. Civ. P. 59(e) for the dismissal of the purported Rule 60(b) motion.1 Judge
Friot determined that because the purported Rule 60(b) motion was in substance a
second or successive § 2255 motion, Judge Leonard had properly ruled that the court
lacked jurisdiction over it absent an order from this court authorizing it through the
procedure set out in 28 U.S.C. § 2244(b). Judge Friot also determined that Judge
Leonard was not authorized to grant Mr. Ngo’s alternative request for
“precertification” of his second or successive § 2255 motion, explaining that only
this court could authorize the filing of such a motion. Judge Friot considered
whether the § 2255 motion should be transferred to this court for authorization but
decided that the interest of justice did not require it because Mr. Ngo’s claims were
unlikely to have merit. Finally, Judge Friot denied a COA as to both Judge
Leonard’s order and Judge Friot’s own order denying relief under Rule 59(e).
Mr. Ngo filed a notice of appeal from the two orders combined with a request
for a COA, which is necessary to appeal those orders. See United States v. Cobb,
307 F. App’x 143, 144–45 (10th Cir. 2009) (concluding that a COA is necessary to
appeal the denial of a Rule 59(e) motion challenging the denial of a § 2255 motion)2;
United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (holding that a COA
1
Judge Friot construed the motion before him as “a true Rule 59(e) motion in
that it challenges Judge Leonard’s procedural ruling, and . . . Judge Leonard’s failure
to address alternative procedural requests made in [Mr. Ngo’s] filings.” R., Vol. I
at 35 n.2.
2
We cite our unpublished decision in Cobb only for its persuasive value. See
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
4
is required to appeal an order dismissing a Ҥ 2255 motion for lack of jurisdiction on
the ground that it is a second or successive motion and unauthorized by the court of
appeals”). A COA can issue only upon “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court resolved
Mr. Ngo’s motions on procedural grounds, he can obtain a COA only by showing
“that jurists of reason would find it debatable whether [his motions] state[] a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Liberally construing Mr. Ngo’s pro se filings,
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008), we conclude that he has
not satisfied the procedural aspect of the Slack test. We therefore need not consider
the merits aspect of that test.
First, reasonable jurists could not debate the conclusion that the purported
Rule 60(b) motion was an unauthorized second or successive § 2255 motion. As
relevant here, a § 2255 motion is one “claiming the right to be released upon the
ground that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence.”
28 U.S.C. § 2255(a). Although Mr. Ngo claims his purported Rule 60(b) motion
addressed deficiencies in his federal habeas proceeding, that is simply not the case.
His motion attacked the adequacy of his indictment and the trial court’s jurisdiction
under federal law, issues that he did not raise in his first § 2255 motion. This plainly
demonstrates that his motion was a § 2255 motion, not a true Rule 60(b) motion.
5
Compare In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008) (per curiam) (concluding
that a purported Rule 60(b) motion was an unauthorized second or successive § 2255
motion where the prisoner argued that the trial court “lacked jurisdiction to convict or
sentence him because the indictment did not describe a ‘locus in quo’ where the
alleged violation occurred, did not allege a violation of the Commerce Clause, and
did not show that the federal codes and statutes he was alleged to have violated were
enacted by Congress”), with United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir.
2006) (rejecting idea that a motion alleging a sentence is unlawful should be
construed as a true Rule 60(b) motion because it did “not assert[] any procedural
error in the disposition of [the prisoner’s] original habeas motion”). Accordingly, the
conclusion of both district court judges that the motion was an unauthorized second
or successive § 2255 motion over which the district court lacked jurisdiction is not
reasonably debatable. See Cline, 531 F.3d at 1251 (holding that district court lacks
subject matter jurisdiction over unauthorized second or successive § 2255 motion).3
Second, Judge Friot’s conclusion that the district court lacked the power to
“precertify” his motion to this court is not reasonably debatable. Certification must
come from “a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h).
Third, we see no room for reasonable debate as to Judge Friot’s determination
that transferring the motion to this court was not in the interest of justice. Judge Friot
based that determination on his view that Mr. Ngo’s claims were unlikely to have
3
Because it is not reasonably debatable that the district court lacked
jurisdiction, there is no merit to Mr. Ngo’s suggestion that the court should have
ordered a response from the government and reviewed his claims on the merits.
6
merit, which is one of the factors bearing on the interest-of-justice inquiry, Cline,
531 F.3d at 1252. However, we conclude that a more fundamental procedural
consideration counseled against transfer, and we may deny a COA on such a ground
even though Judge Friot did not rely on it, see Davis v. Roberts, 425 F.3d 830, 834
(10th Cir. 2005) (“[W]e may deny a COA if there is a plain procedural bar to habeas
relief, even though the district court did not rely on that bar.”).4
Authorization of a second or successive § 2255 motion requires an appropriate
appellate panel to certify that the motion contains either “(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.” 28 U.S.C. § 2255(h)(1)–(2). Mr. Ngo’s
recent discovery that the indictment omitted the “3,4-” prefix from MDMA is not
“newly discovered evidence” bearing on his innocence that might satisfy
§ 2255(h)(1), but instead a legal argument that has been available to him since the
indictment was filed in 2005. And he has not shown that reasonable jurists could
4
Judge Leonard provided no express reason for declining transfer, but we
consider his decision not reasonably debatable for the same reasons Judge Friot’s
refusal to transfer the motion was not reasonably debatable. Mr. Ngo claims that
transfer is mandatory, but we firmly rejected that notion in Cline, stating that when
confronted with an unauthorized second or successive § 2255 claim, “the district
court may transfer the matter to this court if it determines it is in the interest of
justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for
lack of jurisdiction,” 531 F.3d at 1252 (emphasis added).
7
debate whether his motion met these standards. His substantive argument does not
rely on any new, retroactively-applicable rule of constitutional law that would satisfy
§ 2255(h)(2). Denial of transfer was therefore not reasonably debatable because
there was “no risk that a meritorious successive claim [would] be lost.” Cline,
531 F.3d at 1252.5
We deny a COA and dismiss this matter. Mr. Ngo’s motion to file a reply
brief out of time is granted. Mr. Ngo’s application to proceed on appeal in forma
pauperis is denied as moot, and we remind Mr. Ngo of his obligation to pay all filing
and docketing fees in full to the district court clerk.
Entered for the Court
Nancy L. Moritz
Circuit Judge
5
Nothing in this order should be construed as a denial of § 2255(h)
certification. If Mr. Ngo wishes to seek such certification, he must file a motion for
authorization as required by 28 U.S.C. § 2244(b)(3)(A).
8