United States District Court, S.D. Alabama, Southern Division
V.S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the report and recommendation
of the magistrate judge (Doc. 91). For the reasons enumerated
below, the Court reaches the same conclusion as the
magistrate judge but differs as to the reasoning.
Accordingly, the Court finds that the petitioner's motion
is due to be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
petitioner, Diep Vu Ho (“Ho”), was indicted on
June 25, 2009, on charges of conspiracy to possess with
intent to distribute more than 500 grams of methamphetamine
ice, in violation of 21 U.S.C. §841(a)(1) and §846,
and 18 U.S.C. § 2 (Count One); possession with intent to
distribute approximately 5 ounces of methamphetamine ice, in
violation of 21 U.S.C. §841(b)(1)(A) (Count Two);
possession with intent to distribute approximately 1 pound of
methamphetamine ice, in violation of 21 U.S.C.
§841(a)(1) and 18 U.S.C. §2 (Count Three);
possession with intent to distribute approximately 1, 000
tablets of a mixture containing a detectable amount of 3, 4,
-methyenedioxymethamphetamine, in violation of 21 U.S.C.
§841(a)(1) and 18 U.S.C. § 2 (Count Four); plus a
forfeiture count (Count Five). Doc. 1.
trial, Ho was found guilty on Counts One through Four, while
the Court dismissed the forfeiture count at the
government's suggestion. Doc. 71 at 336. The Court
sentenced Ho to one term of life imprisonment for each of the
first three counts and a term of 360 months as to Count Four,
all to be served concurrently. Doc. 61. Additionally, the
Court sentenced Ho to a term of 10 years of supervised
release for each of the first three counts, and six years as
to Count Four, all to be served concurrently. Id. Ho
then filed an appeal before the Eleventh Circuit Court of
Appeals, which affirmed his conviction. Doc. 79.
subsequently filed the instant motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. §2255 on
August 17, 2012. Doc. 83. In it, Ho raised three claims: (1)
that the Court constructively amended the indictment, as
discussed in more detail, infra.; (2) that his
second trial attorney rendered ineffective assistance of
counsel for failing to object to the Court's alleged
constructive amendment and his appellate attorney rendered
ineffective assistance of counsel for failing to raise the
issue on appeal; and (3) that his first trial attorney
rendered ineffective assistance of counsel for mistakenly
informing him that he faced only 240 months' imprisonment
whether he went to trial or pleaded guilty, when in fact he
faced a mandatory minimum sentence of life imprisonment.
magistrate judge issued a report and recommendation on June
6, 2013, in which he recommended that Ho's motion be
denied. Doc. 91. On Jun 7, 2013, Ho filed a letter with this
Court which Ho stated was “in lieu of a more formal
addendum” to his pending § 2255 motion. Doc. 92.
The letter addresses Ho's claim that his indictment was
constructively amended and attached the Information filed by
the Government in his criminal case. Id. On June 21,
2013, Ho additionally filed an Objection to the Report and
Recommendation. (Doc. 93). On June 20, 2016, Ho also filed a
Motion to Supplement Pleadings under 28 USC 2255 Pursuant to
Fed.R.Civ.PR 15(d) and 15(g)(1)(B). Doc. 98. Therein, Ho
seeks to add three additional grounds for which his counsel
was ineffective two of which relate to the selection of the
jury that convicted Ho and a third of which relates to his
counsel's failure to raise another claim on appeal.
relief is an extraordinary remedy which “may not do
service for an appeal.” United States v.
Frady, 456 U.S. 152, 165 (1982). A defendant who has
waived or exhausted his right to appeal is presumed to stand
“fairly and finally convicted.” Id. at
164. Unless a claim alleges a lack of jurisdiction or a
constitutional error, the scope of collateral attack is
extremely limited. United States v. Addonizio, 442
U.S. 178, 185 (1979).
argues that the Court modified an essential element of the
offense charged in the indictment by providing a verdict form
to the jury which referred to “500 grams or more of a
mixture or substance containing methamphetamine” while
the indictment referred to “methamphetamine ice.”
Doc. 83 at 4; see also Doc. 1 and Doc. 48.
constructive amendment to the indictment occurs where the
jury instructions “so modif[y] the elements of the
offense charged that the defendant may have been convicted on
a ground not alleged by the grand jury's
indictment.” U.S. v. Peel, 837 F.2d 975 (11th
Cir. 1988) (quoting United States v. Lignarolo, 770
F.2d 971, 981, n. 15 (11th Cir. 1985), cert. denied,
1105 U.S. 476, (1986) (quotation marks omitted)).
claim is without merit. The Court's instructions to the
jury correctly identified the charges in the indictment and
the elements of those charges. Doc. 50 at 24-28.
Additionally, the jury was provided with a copy of the
indictment for its use during deliberations. The difference
in verbiage between the indictment and the verdict form did
not add another element to the crimes charged, nor did it
broaden the elements stated in the indictment. See U.S.
v. Kuenstler, 325 F.3d 1015, 1022 (8th Cir. 2003) (jury
instructions reading “50 grams or more of a mixture and
substance of methamphetamine” did not constructively
amend indictment reading “50 grams or more of