Nguyen v. USA
| Thao Thi Nguyen |
| USA |
| 1:2022cv00529 |
| December 21, 2022 |
| US District Court for the District of Hawaii |
| SUSAN OKI MOLLWAY |
| WES REBER PORTER |
| Prisoner: Vacate Sentence |
| 28 U.S.C. ยง 2255 Motion to Vacate / Correct Illegal Sentence |
| None |
Docket Report
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This docket was last retrieved on February 21, 2023. A more recent docket listing may be available from PACER.
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Filing 4
EO: The court has received a section 2255 motion filed by Thao Thi Nguyen. The court directs Nguyen to file a supplemental brief addressing the requirements in section 2255 that a movant be in custody and that the motion be filed within the time set forth in the statute. The supplemental brief must be filed no later than January 5, 2023. In requesting the supplemental brief, the court notes that in two cases cited in Nguyen's motion, Smith v. Swope, 91 F.2d 260 (9th Cir. 1937), and United States v. Merritt, 478 F. Supp. 804 (D.D.C. 1979), the movants were in custody when they filed their motions, although neither decision discusses the need to be in custody when seeking relief. The Smith case was decided before section 2255 was enacted, while the motion in Merritt was filed under section 2255. In another case cited in Nguyen's motion, United States v. Martinez, 837 F.2d 861 (9th Cir. 1988), the defendant filed his 2255 motion "[a]fter the commitment order, but before surrendering himself." That decision did not expressly address the custody requirement either. At most, the Martinez decision says, "We express no opinion whether a distinction between serving one day and serving no time at all justifies a conclusion that credit be given for time erroneously at liberty. Id. at 865. With respect to the issue of timing, none of the above cases discussed the timing issue, which, under the circumstances of those cases and the present case, may or may not be a problem. The Government's response to Nguyen's motion (including the supplemental brief) is due by February 2, 2023, and Nguyen may file an optional reply memorandum by February 16, 2023. re #1 . (JUDGE SUSAN OKI MOLLWAY)(cib)
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Filing 3
NOTICE of Case Assignment: Please reflect both Civil case number CV 22-00529 SOM-WRP and Criminal case number CR 01-00314 SOM-13 on all further pleadings. Additionally, please be advised that all filings relevant to the 28 U.S.C. 2255 Motion to Vacate, Set Aside or Correct Sentence shall be filed ONLY in Criminal case CR 01-00314 SOM-13, USA v. Thao Thi Nguyen. . (eta)
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Filing 2
Movant's MEMORANDUM in Support of #1 28 USC 2255 Motion to Vacate, Set Aside, Or Correct Sentence - filed by Thao Thi Nguyen. Note: The Clerk's Office has refiled the 2255 motion, originally e-filed under MC 22-00630. (Attachments: #1 Exhibit A - " Federal Minutes", #2 Exhibit B - "Ekokua", #3 Exhibit C - "HPA Fact Sheet" )(eta)
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Filing 1
MOTION Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody - filed by Thao Thi Nguyen. Note: The Clerk's Office has refiled the 2255 motion, originally e-filed under MC 22-00630. (eta)
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| Petitioner: Thao Thi Nguyen | |
| Represented By: | Walter J. Rodby, I |
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| Respondent: USA | |
| Represented By: | Darren W.K. Ching |
| Represented By: | Marshall H Silverberg |
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