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Ho v. United States

United States District Court, S.D. Alabama, Southern Division

April 17, 2019

DIEP VU HO, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          CALLIE V.S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         At 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.

         Ho 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. Id.

         The 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. Id.

         II. §2255 STANDARD

         Habeas 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).

         III. CONSTRUCTIVE AMENDMENT

         Ho 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.

         A 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)).

         Ho's 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 methamphetamine”).

         IV. INEFFECTIVE ...


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