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United States v. Chanhkongshinh

United States District Court, W.D. Louisiana, Lafayette Division

August 20, 2018

UNITED STATES OF AMERICA
v.
KO CHANHKONGSHINH (04)

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          Patrick J. Hanna United States Magistrate Judge

         Before the court is the Motion to Vacate Sentence filed by petitioner, Ko Chanhkongshinh, pursuant to 28 U.S.C. § 2255. [Rec. Doc. 523]. This matter was referred to the undersigned Magistrate Judge for review, report, and recommendation.

         FACTUAL BACKGROUND

         The record reveals that Ko Chanhkongshinh and thirteen co-defendants were charged in a twenty-count indictment. Chanhkongshinh was charged in Count One with Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine and Count Ten with Use of a Communication Facility in Causing or Facilitating a Drug Trafficking Crime.

         On July 23, 2015, he pleaded guilty to Count One of the indictment as part of a plea agreement with the Government. In the factual basis for the guilty plea, the defendant admitted that he was supplied crystal methamphetamine, on a regular basis, which he sold to third-parties and then used the money he received to purchase more crystal methamphetamine from his co-conspirators. The defendant further admitted that he was in possession of approximately one ounce of methamphetamine and three firearms at the time of his arrest. [Rec. Doc. 307-2, p. 1]

         A pre-sentencing investigation report was issued and the defendant filed an objection that raised two substantive objections. [Rec. Doc. 456] First, the defendant objected to the facts surrounding the items that were located in the residence and the alleged individuals that resided in the residence. The defendant argued that the pre-sentence investigation report consisted of facts that were not in the stipulated factual basis for the guilty plea, including that a digital scale or other drug paraphernalia was located in the residence, three children resided in the residence and the specific location of one of the firearms because the location remained in dispute between the parties. Id. at 1. Second, the defendant objected to the finding that he was not a minor participant in the overall conspiracy and sought to reduce his offense level by two levels. Id. at 2.

         On January 14, 2016, he was sentenced to 75 months imprisonment and three years supervised release. [Rec. Doc. 443] Chanhkongshinh did not directly appeal his conviction and sentence. On October 23, 2017, he filed a Motion for New Trial pursuant to Federal Rule of Criminal Procedure 33 [Rec. Doc. 506], which was construed as a Motion to Modify Sentence, and denied on January 30, 2018.

         The Motion to Vacate[1] presently before this Court was filed on May 25, 2018, pursuant to which petitioner asserts newly discovered evidence in the form of Drug Enforcement Agency Task Force Officer Jason Comeaux's March 3, 2016 conviction on one count of deprivation of rights, one count of conspiracy and one count of obstruction of justice in connection with his employment with the Iberia Parish Sheriff's Office.

         On November 18, 2014, pursuant to an arrest warrant, the defendant was arrested by Special Agent Milton Milford. [Rec. Doc. 63] The warrant indicates that Jason Comeaux was the investigative agent and the factual basis for the defendant's guilty plea and that more than one agent was present at the time of his arrest. Therefore, while he was not the arresting officer that signed the warrant, the Court will assume for the purpose of this motion that Comeaux was one of the agents present.

         On March 7, 2016, Comeaux pleaded guilty to Civil Rights Conspiracy, Deprivation of Rights Under Color of Law, and Conspiracy to Obstruct.[2" name="FN2" id="FN2">2] In the factual basis for the guilty plea, Comeaux admitted that he and other Iberia Parish Sheriff Office employees conspired to assault a pre-trial detainee at the Iberia Parish Jail on April 29, 2011.[3] Comeaux further admitted that he and other Iberia Parish Sheriff Office employees then fabricated testimony in order to cover-up the assault and to prevent further investigation.[4] Consequently, Comeaux was sentenced to 40-months of imprisonment and two years of supervised release.[5]

         Chanhkongshinh argues in the instant motion that the Presentence Investigation Report and his resulting sentence are fatally flawed to the extent that they relied on Comeaux's statements and reports to impose a two-level enhancement for possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1), while failing to award him a two-point reduction for being a minor participant, pursuant to U.S.S.G. §3B1.2. Chanhkongshinh contends that Comeaux's conviction calls into question the investigative reports Comeaux prepared and credibility as a whole, and he asks that this Court find that the criminal proceedings against him were prejudiced.

         LAW AND ANALYSIS

         Defendant's motion is untimely and, therefore, should be dismissed. Title 28 U.S.C. § 2255 provides a one-year statute of limitations for the filing of motions pursuant to § 2255. This limitation period generally runs from the date that the conviction becomes final. 28 U.S.C. § 2255(f)(1). Petitioner's conviction became final on February 1, 2016, ten days (excluding holidays and weekends) after petitioner's judgment of conviction was entered on this Court's docket. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). Petitioner therefore had one year, or until February 1, 2017 to file his § 2255 Motion in this Court. The instant Motion was not filed until May 25, 2018. Thus, it is clear that petitioner's claims cannot be considered under the period established by 28 U.S.C. § 2255(f)(1). Rather, petitioner must rely ...


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