United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
Patrick J. Hanna United States Magistrate Judge
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
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.
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]
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.
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.
Motion to Vacate 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
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.
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. 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. Consequently, Comeaux was sentenced to
40-months of imprisonment and two years of supervised
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
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 ...