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Nguyen v. United States

United States District Court, E.D. Wisconsin

October 17, 2016

DRAKENOLD TUAN NGUYEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT (DOC. 46), DENYING AS MOOT PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT (DOC. 45) AND SETTING BRIEFING SCHEDULE

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE

         On June 30, 2016, the Seventh Circuit Court of Appeals transferred Drakenold Nguyen's motion for an order granting permission to reinstate direct appeal rights, construing it as a motion for relief from judgment under Rule 60 of the Federal Rules of Civil Procedure. This court denied Nguyen's motion under 28 U.S.C. § 2255 after concluding that he had waived his claims by pleading guilty and could not otherwise establish that he was prejudiced due to ineffective assistance of counsel. However, after the appeal was filed, a court reporter responding to Nguyen's request for a transcript discovered that a portion of the sentencing hearing had been sealed. The sealed portion of the sentencing hearing is cited as a basis for Nguyen's claim that his plea was involuntary and counsel was ineffective.

         Briefly, Nguyen entered guilty pleas to one count of conspiracy to distribute and to possess with intent to distribute more than 1, 000 kilograms of marijuana and one count of conspiracy to commit money laundering. (Case Nos. 05-CR-226 and 06-CR-163). On October 13, 2006, he was sentenced to a concurrent term of 240 months imprisonment. Due to a clerical error, Nguyen's notice of appeal was not filed before the time to do so had run. Therefore, on May 26, 2009, the court entered an amended judgment imposing the same concurrent 240 month prison term.

         On direct appeal, Nguyen argued that his guilty plea was involuntary and that the government rendered it so by failing to inform the court of the nature and extent of his cooperation and by violating a purported agreement to limit his prison sentence to ten years. Additionally, he maintained that counsel was ineffective in negotiating the plea. The Seventh Circuit dismissed the appeal concluding that any challenge to the guilty plea would be frivolous, and that the unambiguous waiver of his right to appeal was enforceable. The United States Supreme Court denied his petition for writ of certiorari.

         In his § 2255 motion, Nguyen asserted that his plea was not knowing or voluntary, that the government breached its plea agreement, that the court erred when imposing a sentencing enhancement pursuant to U.S.S.G. § 3B1.1, and that counsel was ineffective. In denying the motion, the court cited the waiver of appeal rights in paragraph 35 of the plea agreement, Nguyen's discussion of the waiver during the plea colloquy, and the Seventh Circuit's decision on appeal.

         With respect to the ineffective assistance of counsel claims, Nguyen argued, among other things, that counsel misinformed him of the possible penalties he would face after pleading guilty “by deluding him into thinking his risk was minimized to that which was outlined in the proffer letter counsel had him sign.” The court directed Nguyen to the acknowledgment in his plea agreement that the Wisconsin indictment carried a maximum of life in prison and the Michigan indictment carried a maximum of 20 years. There was nothing before this court suggesting that promises were made to Nguyen by anyone involved in the case. Indeed, the court stated that the only proffer letter of which the court was aware was submitted by Nguyen on direct appeal and did not reference specific penalties or otherwise conflict with the plain language of the plea agreement. Accordingly, the § 2255 motion was denied, and Nguyen appealed. The Seventh Circuit has since construed Nguyen's motion to reinstate his appeal rights as a Rule 60(b) motion and has transferred the same to this court.

         A district court has discretion to reopen proceedings under Fed.R.Civ.P. 60(b)(3) for “fraud, misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3); Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir. 2010). However, a Rule 60(b)(3) motion must be made within a reasonable time but no more than a year after the judgment or order or the date of the proceeding. Fed.R.Civ.P. 60(c)(1). Additionally, Fed.R.Civ.P. 60(b)(6) allows the court to grant relief from judgment for “any other reason that justifies relief.” Finally, Fed.R.Civ.P. 60(d)(3) authorizes every district court, independent of Rule 60(b), to “set aside a judgment for fraud on the court” no matter when the fraud comes to light. Simple perjury does not allow relief under Rule 60(d)(3); however, “a cooperative endeavor by multiple police officers and their lawyers to suppress the truth might do so.” Moore v. Burge, 771 F.3d 444, 448 (7th Cir. 2014). A party seeking to set aside a judgment under Rule 60(d)(3) must prove fraud by clear and convincing evidence. Wickens, 620 F.3d at 759.

         In transferring Nguyen's motion to this court, the Seventh Circuit focused on new evidence of “proffer letters presented during his plea hearing, the transcript of which had been mistakenly sealed in the district court.” According to the Seventh Circuit, “Nguyen attempted to unseal the transcripts for nearly ten years, despite the district court's insistence that there were no sealed documents in the record.”[1] As a consequence, the Seventh Circuit instructed this court to, if appropriate, conduct an evidentiary hearing to determine if the circumstances surrounding the sealed transcript operated as fraud on the district court, see Fed.R.Civ.P. 60(b)(3), (b)(6), (d)(3), and whether its review of an incomplete record supported its decision to enter judgment against Nguyen.”

         Nguyen argues that because the allocution was not recorded in the minutes or on the docket, appellate counsel could not locate the basis for Nguyen's claim. In his motion to withdraw, counsel stated:

Mr. Nguyen maintains that there was a proffer letter signed by the parties which contained an agreement to this specific sentence. However, there is no evidence of such an agreement in the record.

(Doc. 45, Ex. E.) In a footnote, counsel explained that he was aware of the November 1, 2005, proffer letter which did not contain any promise for a specific sentence and that he could not locate any second proffer letter signed by Nguyen, the government, and defense counsel.

         The relevant portion of the full transcript, which was first docketed on July 31, 2015, states as follows:

THE DEFENDANT: In a short period of time I was act foolish, stupid, and ruined my life for ...

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