FILED 2 . D4 DISTRICT COURT OF GUAM 3 JUL 18 2005 4 MARY L.M. MORAN 5 CLERK OF COURT 6 DISTRICT COURT OF GUAM TERRITORY OF GUAM 7 S ) 8 9 || LEEANN NGUYEN DOWNUM, Criminal Case No. 98-00032 10 Civil Case No. 04-00053 Defendant-Petitioner, 1 ORDER DENYING MOTION Vs. TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNITED STATES OF AMERICA, [28 U.S.C. § 2255] 13 Plaintiff-Respondent. 14 15 Petitioner Leeann Nguyen Downum (“Petitioner”) filed a Motion to Vacate, Set Aside o 16 || Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The Petitione 17 || claims that in light of the Ninth Circuit’s decision in United States v. Cabaccang, 332 F. 3d 622 18 || clarified by 341 F.3d 905 (9th Cir. 2003) (en banc), her conviction is invalid. After carefu 19 || consideration of the matter, the Court finds no basis for the relief as requested and DENIES th 20 || motion. 71 || I. BACKGROUND 22 On March 11, 1998, Petitioner pled guilty to one count of Attempted Importation of Cryste 93 || Methamphetamine, in violation of 21 U.S.C. § 952(a), § 960 and § 963. At the time of her plez 74 || Petitioner stipulated to facts contained in her plea agreement that: 25 [Petitioner] arrived in Guam aboard a continental Airlines flight from Honolulu, Hawaii. During a secondary inspection of the defendant’s 6 baggage, Guam Customs Officers located a false bottom in a black bag in the defendant’s possession. When the false bottom of the bag 27 was opened, officers located clear plastic bags containing a white crystal-like substance which field-tested positive for amphetamine. 28 The total gross weight, including packaging, of the plastic bags and their contents, was 313.6 grams.
1 On July 17, 1998, the Court sentenced Petitioner to one hundred eight (108) month 2 imprisonment. The judgment of conviction was entered on the docket on July 20, 1998. Petitione 3 || did not file a notice of appeal within ten (10) days after entry of the Court’s judgment. He 4 || conviction became final on July 30, 1998. See FED. R. APP. P. 4(b); United States v. Schwartz, 27: 5 ll F.3d 1220, 1223 (9th Cir. 2000) (holding that a conviction is final if a notice of appeal is not file 6 || within ten (10) days). Thereafter, Petitioner, pro se and incarcerated, brought this motion pursuan 7 || to28 U.S.C. § 2255 on March 29, 2005,' requesting the Court to vacate her conviction and sentence. 8 || II. PETITIONER’S MOTION IS UNTIMELY 9 Petitioner seeks relief asserting there has been a “change in the law” regarding wha 10 || constitutes importation under 21 U.S.C. § 952(a). Specifically, Petitioner claims that the Nint 11 || Circuit’s Cabaccang decision invalidates her conviction. See Cabaccang, 332 F.3d 62: 12 || (transportation of a controlled substance through international airspace on a nonstop flight from on 13 || United States location to another (including U.S. territories) does not constitute importation a 14 || prohibited by 21 U.S.C. § 952(a)). Petitioner argues that she now stands convicted of an offens 15 || which is “non-existent” in light of that decision. 16 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a strict one 17 || year limitation on when a prisoner may bring a motion to vacate, set aside, or correct his or he 18 |] sentence under that section. 28 U.S.C. § 2255, 9.6. The one-year period runs from “the latest” o 19 || the events enumerated as follows: 20 (1) the date on which the judgment of conviction becomes final; 21 (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the 22 United States is removed, if the movant was prevented from making a motion by such governmental action; 23 24 1 Petitioner filed the Motion with this Court on December 27, 2004, however since this motion is her thir motion filed with this Court seeking relief under § 2255, the Court lacked jurisdiction to act absent approval from th 25 || Ninth Circuit Court of Appeals. Petitioner received authorization to file a subsequent § 2255 petition for □□□□□□ Marc 29, 2005. Instead of requiring Petitioner to file another petition, the Court will consider her petition initially filed o 26 December 27, 2004 as filed on March 29, 2005, the date the Ninth Circuit issued its authorization. See Docket No. 2s For statute of limitations purposes, the Court will consider the filing date of the § 2255 motion to be December 27, 200¢ 27 2 The Petitioner also filed a Petition for Appointment of Counsel and an Application to Proceed withor 28 || Prepayment of Fees. See Docket Nos. 27A and 28, As the Court is disposing of the case on its merits, these request are DENIED AS MOOT.
1 (3) the date on which the right asserted was initially recognized by the 2 Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on 3 collateral review; or 4 (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due 5 diligence. 6 || Jd. 7 Here, Petitioner initially filed this motion on December 27, 2004. Thus, for the motion t 8 || be timely, Petitioner must show that one of the four events listed in paragraph six occurred on ¢ 9 |! after December 27, 2003. The first subsection of paragraph six does not apply because Petitioner’ 10 || judgment of conviction became final on July 30, 1998, approximately six and a half years befor 11 || Petitioner filed the motion. The second subsection does not apply because nothing in Petitioner’ 12 || motion suggests the removal of any governmental action that was previously impeding him fror 13 || bringing the motion. The third subsection does not apply because Cabaccang is not a Suprem 14 || Court decision recognizing anew constitutional right. The fourth subsection does not apply becaus 15 || Petitioner’s claim is not supported by newly discovered facts. As none of the four events listed i 16 || paragraph six of § 2255 occurred within one year of Petitioner’s motion, the motion is not timely. 17 Moreover, even if the Court were to assume arguendo that the Cabaccang decision trigger 18 || anew one-year period in which to file a motion, Petitioner failed to bring his claim within one yez 19 || of that decision. Cabaccang was issued on June 6, 2003 and the Petitioner filed his § 2255 petitio 20 on December 27, 2004, approximately one and a half years later. Accordingly, Petitioner’s motio 21 || would still be untimely. 22 /// 23 /// 24 4 /// 25 | /// 26 | ———_______"____"_EEE_”™ 27 Congress had wanted to permit decisions like Cabaccang to trigger a new one-year period, Congress simp] could have included an additional subsection to paragraph six of § 2255, explicitly stating that the one-year period shoul 28 || begin to run on the date on which the Supreme Court or any circuit court initially announced a more narrow constructio of the federal statute under which the petitioner is convicted. But paragraph six contains no such provision.
1 | TL. DISPOSITION 2 For the reasons stated above, the Court DENIES Petitioner’s motion. 3 4] IT IS SO ORDERED.
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FILED 2 . D4 DISTRICT COURT OF GUAM 3 JUL 18 2005 4 MARY L.M. MORAN 5 CLERK OF COURT 6 DISTRICT COURT OF GUAM TERRITORY OF GUAM 7 S ) 8 9 || LEEANN NGUYEN DOWNUM, Criminal Case No. 98-00032 10 Civil Case No. 04-00053 Defendant-Petitioner, 1 ORDER DENYING MOTION Vs. TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNITED STATES OF AMERICA, [28 U.S.C. § 2255] 13 Plaintiff-Respondent. 14 15 Petitioner Leeann Nguyen Downum (“Petitioner”) filed a Motion to Vacate, Set Aside o 16 || Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The Petitione 17 || claims that in light of the Ninth Circuit’s decision in United States v. Cabaccang, 332 F. 3d 622 18 || clarified by 341 F.3d 905 (9th Cir. 2003) (en banc), her conviction is invalid. After carefu 19 || consideration of the matter, the Court finds no basis for the relief as requested and DENIES th 20 || motion. 71 || I. BACKGROUND 22 On March 11, 1998, Petitioner pled guilty to one count of Attempted Importation of Cryste 93 || Methamphetamine, in violation of 21 U.S.C. § 952(a), § 960 and § 963. At the time of her plez 74 || Petitioner stipulated to facts contained in her plea agreement that: 25 [Petitioner] arrived in Guam aboard a continental Airlines flight from Honolulu, Hawaii. During a secondary inspection of the defendant’s 6 baggage, Guam Customs Officers located a false bottom in a black bag in the defendant’s possession. When the false bottom of the bag 27 was opened, officers located clear plastic bags containing a white crystal-like substance which field-tested positive for amphetamine. 28 The total gross weight, including packaging, of the plastic bags and their contents, was 313.6 grams.
1 On July 17, 1998, the Court sentenced Petitioner to one hundred eight (108) month 2 imprisonment. The judgment of conviction was entered on the docket on July 20, 1998. Petitione 3 || did not file a notice of appeal within ten (10) days after entry of the Court’s judgment. He 4 || conviction became final on July 30, 1998. See FED. R. APP. P. 4(b); United States v. Schwartz, 27: 5 ll F.3d 1220, 1223 (9th Cir. 2000) (holding that a conviction is final if a notice of appeal is not file 6 || within ten (10) days). Thereafter, Petitioner, pro se and incarcerated, brought this motion pursuan 7 || to28 U.S.C. § 2255 on March 29, 2005,' requesting the Court to vacate her conviction and sentence. 8 || II. PETITIONER’S MOTION IS UNTIMELY 9 Petitioner seeks relief asserting there has been a “change in the law” regarding wha 10 || constitutes importation under 21 U.S.C. § 952(a). Specifically, Petitioner claims that the Nint 11 || Circuit’s Cabaccang decision invalidates her conviction. See Cabaccang, 332 F.3d 62: 12 || (transportation of a controlled substance through international airspace on a nonstop flight from on 13 || United States location to another (including U.S. territories) does not constitute importation a 14 || prohibited by 21 U.S.C. § 952(a)). Petitioner argues that she now stands convicted of an offens 15 || which is “non-existent” in light of that decision. 16 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a strict one 17 || year limitation on when a prisoner may bring a motion to vacate, set aside, or correct his or he 18 |] sentence under that section. 28 U.S.C. § 2255, 9.6. The one-year period runs from “the latest” o 19 || the events enumerated as follows: 20 (1) the date on which the judgment of conviction becomes final; 21 (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the 22 United States is removed, if the movant was prevented from making a motion by such governmental action; 23 24 1 Petitioner filed the Motion with this Court on December 27, 2004, however since this motion is her thir motion filed with this Court seeking relief under § 2255, the Court lacked jurisdiction to act absent approval from th 25 || Ninth Circuit Court of Appeals. Petitioner received authorization to file a subsequent § 2255 petition for □□□□□□ Marc 29, 2005. Instead of requiring Petitioner to file another petition, the Court will consider her petition initially filed o 26 December 27, 2004 as filed on March 29, 2005, the date the Ninth Circuit issued its authorization. See Docket No. 2s For statute of limitations purposes, the Court will consider the filing date of the § 2255 motion to be December 27, 200¢ 27 2 The Petitioner also filed a Petition for Appointment of Counsel and an Application to Proceed withor 28 || Prepayment of Fees. See Docket Nos. 27A and 28, As the Court is disposing of the case on its merits, these request are DENIED AS MOOT.
1 (3) the date on which the right asserted was initially recognized by the 2 Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on 3 collateral review; or 4 (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due 5 diligence. 6 || Jd. 7 Here, Petitioner initially filed this motion on December 27, 2004. Thus, for the motion t 8 || be timely, Petitioner must show that one of the four events listed in paragraph six occurred on ¢ 9 |! after December 27, 2003. The first subsection of paragraph six does not apply because Petitioner’ 10 || judgment of conviction became final on July 30, 1998, approximately six and a half years befor 11 || Petitioner filed the motion. The second subsection does not apply because nothing in Petitioner’ 12 || motion suggests the removal of any governmental action that was previously impeding him fror 13 || bringing the motion. The third subsection does not apply because Cabaccang is not a Suprem 14 || Court decision recognizing anew constitutional right. The fourth subsection does not apply becaus 15 || Petitioner’s claim is not supported by newly discovered facts. As none of the four events listed i 16 || paragraph six of § 2255 occurred within one year of Petitioner’s motion, the motion is not timely. 17 Moreover, even if the Court were to assume arguendo that the Cabaccang decision trigger 18 || anew one-year period in which to file a motion, Petitioner failed to bring his claim within one yez 19 || of that decision. Cabaccang was issued on June 6, 2003 and the Petitioner filed his § 2255 petitio 20 on December 27, 2004, approximately one and a half years later. Accordingly, Petitioner’s motio 21 || would still be untimely. 22 /// 23 /// 24 4 /// 25 | /// 26 | ———_______"____"_EEE_”™ 27 Congress had wanted to permit decisions like Cabaccang to trigger a new one-year period, Congress simp] could have included an additional subsection to paragraph six of § 2255, explicitly stating that the one-year period shoul 28 || begin to run on the date on which the Supreme Court or any circuit court initially announced a more narrow constructio of the federal statute under which the petitioner is convicted. But paragraph six contains no such provision.
1 | TL. DISPOSITION 2 For the reasons stated above, the Court DENIES Petitioner’s motion. 3 4] IT IS SO ORDERED. 5 || DATED: fs 7 2008 6 7 ~ A biudl 2, Carter 8 DAVID O. CARTER United States District Judge 9 10 11 12 Notice is hereby given that this document Wi _ entered on the docket on Geta 13 No seperate notice of entry on docket be issued by this Court. L. M. Moren 14 Mary Clerk, District Court of Coane Sox Byrn □□ af. Cie ‘ Deputy Date 16 17 18 19 20 21 22 23 24 25 26 27 * The Honorable David O. Carter, United States District Judge for the Central District of California, by 28 designation.