Nguyen v. United States of America
| Thao Thi Nguyen, Mimi, Thao Ray and Mimi Thao Ray |
| United States of America |
| 1:2023cv00093 |
| February 16, 2023 |
| US District Court for the District of Hawaii |
| KENNETH J MANSFIELD |
| SUSAN OKI MOLLWAY |
| Habeas Corpus (General) |
| 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus (federal) |
| None |
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| Filing 12 CLERK'S JUDGMENT entered on 3/13/2023 pursuant to ECF No. 11 . (eta) |
| Filing 11 EO: Given the granting of the motion for compassionate release filed in Crim. No. 01-00314-SOM, the court denies as moot the petition filed in this action under section 2241. The Clerk is directed to enter judgment in accordance with this minute order and to close this case. (JUDGE SUSAN OKI MOLLWAY)(cib) |
| Filing 10 EP: Telephonic Status Conference held.The Court and the Parties are present via telephone. Defendant's presence is waived. Rob Miller, attorney advisor at FDC Honolulu, present via telephone.Samuelo Mulitalo and Jennifer Hui, R&D, FDC Honolulu, also present via telephone.Harvey Fuata, USMS, present via telephone.Discussion held.Defendant's Counsel agrees to bring physical copies of the Motion for Compassionate Release to submit to the Clerk's Office on 3/13/2023, once Defendant is in custody. As soon as FDC Honolulu and the U.S.M.S. receive the court's anticipated amended judgment and order granting the motion for compassionate release, Defendant will be released from custody by the U.S.M.S. Defendant is then directed to go immediately to the U.S. Probation Office for reporting purposes.Defendant remains on conditions of bail pending the anticipated grant of her motion for compassionate release. (Reporter-Ann Matsumoto) (JUDGE SUSAN OKI MOLLWAY)(tl) |
| Filing 9 EP: Status Conference re: defendant Thao Thi Nguyen in Crim. No. 01-00314-SOM-13 and Petition for a Writ of Habeas Corpus Under 28 U.S.C. 2241 in Civ. No. 1:23-00093-SOM-KJM.The Court and the Parties are present via video conference ("VTC"). Discussion held.Defendant agrees to the following:Defendant shall report to the U.S. Marshall Service for the District of Hawaii on Monday, March 13, 2023 before or by 10:00 a.m.;If the Defendant files a Motion for Compassionate Release, the court will promptly review it;If the court grants the Motion for Compassionate Release, Defendant shall be released from custody by the U.S. Marshall Service;The anticipated grant of the Motion for Compassionate Release will involve a reduction of the sentence to time served, followed by one year of supervised release;During the term of supervised release, Defendant shall comply with mandatory, standard, and special conditions of supervision as set forth in Appendix A. If Defendant is released from custody on March 13, 2023, Defendant shall go directly to the U.S. Probation Office for reporting purposes. Conditions:You must abide by the mandatory, standard and special conditions of supervision.See attached minutes for details.Defendant to remain on conditions of bail pending the anticipated granting of compassionate release. (Reporter-Cynthia Fazio) (JUDGE SUSAN OKI MOLLWAY)(tl) |
| Filing 8 RESPONSE re 7 Link, The Government' Status Report filed by Thao Thi Nguyen. (Silverberg, Marshall) |
| Filing 7 EO: In a minute order filed on February 23, 2023, the court directed the attorneys to confer and then to submit a report by February 28, 2023. No report has been received. A hearing has been scheduled for March 9, 2023, at 11:00 a.m. The report requested by this court was intended to inform the discussion during hearing. The report should be filed immediately or at the latest by noon on March 6, 2023. (JUDGE SUSAN OKI MOLLWAY)(cib) |
| Filing 6 EO: The court thinks it might be helpful to air some matters before any reply memorandum is filed. The court is preliminarily inclined to consider Thao Thi Nguyen to be in custody. However, having reviewed Nguyen's 2241 petition, the court is concerned that it may not name the proper respondent. In such a petition, the proper respondent is "the person who has custody over the petitioner." Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (internal quotation marks and brackets omitted); see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992) (per curiam) ("The proper respondent in a federal habeas corpus petition is the petitioner's 'immediate custodian'"). In this petition, Nguyen names herself as the respondent. See ECF No. #1 . This is improper. See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95 (1973) (noting that the respondent should be "the person who holds [the petitioner] in what is alleged to be unlawful custody"). Nguyen may have intended to name the United States of America as the respondent, but that also would have been improper. See Bocanegra v. United States, No. CV 20-821, 2020 WL 509396, at *4 (C.D. Cal. Jan. 31, 2020) ("In a Section 2241 petition, the proper respondent is... not the United States of America."); cf. Rumsfeld v. Padilla, 542 U.S. 426, 43436, 442 (2004)(" the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.").This matters because if Nguyen has named an improper respondent, then the court lacks personal jurisdiction over the respondent and cannot reach the merits of her petition. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996) (as amended May 8, 1996)("Failure to name the correct respondent destroys personal jurisdiction"); see also Stanley v. California Supreme Ct., 21 F.3d 359, 360 (9th Cir. 1994). Dismissal is warranted when "the party under whose custody the prisoner is detained has not been named, or served, as a respondent." Morehead v. State of Cal., 339 F.2d 170, 171 (9th Cir. 1964). When a petitioner is free on bail, the proper respondent is typically deemed to be the court that subjected the petitioner to bail. See Reimnitz v. State's Att'y of Cook Cnty., 761 F.2d 405, 409 (7th Cir. 1985)("the court that admitted the petitioner to bail, represented in the habeas corpus action by the prosecutor who wants to keep the petitioner from getting unconditional freedom, is a logical respondent."). That approach may work when the custodian is a state court, see e.g., id., but in a case such as this, it would put this court in the position of being both adjudicator and respondent, giving rise to a clear conflict.Possibly, Jonathan Skedeleski, the Chief U.S. Probation Officer for the Office of Probation of the U.S. District Court of Hawaii, might be an appropriate respondent This aligns with the common practice of naming the official in charge of the parole or probation agency as the respondent when a habeas petitioner is on parole or probation. See Advisory Committee's Notes following Rule 1 of the Rules Governing Section 2254 Proceedings. It is not clear that this makes sense in this case, but if it does, this judge is concerned about whether she should recuse. Nor is it clear that Mr. Silverberg could represent Skedekeski. Section 2241 issues could be avoided if the parties agreed that a compassionate release motion made more sense. The Government has offered in its latest filing not to oppose compassionate release if certain circumstances are established. It is unclear whether the Government intends to waive the exhaustion requirement if all its other conditions are met. The parties are directed to confer with each other about all matters raised in the present minute order and in the briefs filed to date. Nguyen is directed to notify the court by February 28, 2023, whether the parties have reached any agreement.(JUDGE SUSAN OKI MOLLWAY)(cib) |
| Filing 5 EO: Status Conference via Video Conference re: Petition for a Writ of Habeas Corpus Under 28 U.S.C. 2241 is set for 3/9/2023 at 11:00 AM before JUDGE SUSAN OKI MOLLWAY. The courtroom manager will provide the applicable participants with instructions and information to connect by video prior to the scheduled video conference date. (JUDGE SUSAN OKI MOLLWAY)(tl) |
| Filing 4 MEMORANDUM in Opposition The Government's Memorandum in Opposition to the Defendant's "Petition for Writ of Habeas Corpus 28 U.S.C. 2241/COS filed by United States of America. (Attachments: #1 (Restricted) Exhibit 1, #2 Exhibit 2, #3 Exhibit 3)(Silverberg, Marshall) Modified on 2/23/2023 to provisionally restrict Exhibit 1 as it contains personal identifiers. (jni) |
| Filing 3 EO: Petitioner Thao Thi Nguyen has filed a petition under section 2241. The Government is directed to respond by February 27, 2023. Petitioner may file an optional reply memorandum by March 3, 2023. re #1 . (JUDGE SUSAN OKI MOLLWAY)(cib) |
| Filing 2 NOTICE of Case Assignment: Please reflect Civil case number CV 23-00093 SOM-KJM on all further pleadings. (eta) |
| ADVISORY ENTRY. Re: #1 Petition for Writ of Habeas Corpus, filed by Thao Thi Nguyen ~ Please be advised that the filing fee for the Petition for Writ of Habeas Corpus Under 28 U.S.C. 2241 is $5.00. The filing party may remit the filing fee through CM/ECF by selecting the filing event "Payment of Fees" from the "Other Documents" filing category, or online through Pay.gov ( see "Schedule of Fees & Online Payments" at www.hid.uscourts.gov), or, directly to the Clerk's Office. (eta) |
| Filing 1 PETITION for a Writ of Habeas Corpus Under 28 U.S.C. 2241 - filed by Thao Thi Nguyen. Note: The Clerk's Office has re-entered this document, originally e-filed by counsel for Thao Thi Nguyen in CR 01-00314 SOM-13 on 2/16/2023. (eta) |
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