ORDER DENYING DEFENDANT TRINH'S MOTION FOR SENTENCE REDUCTION PURSUANT TO SECTION 404 OF THE FIRST STEP ACT
Re: Dkt. No. 251
SUSAN ILLSTON, District Judge.
On May 2, 2019, defendant Huy Trinh filed a pro se motion seeking a reduction of his sentence pursuant to Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Dkt. No. 251. For the reasons set forth below, the Court DENIES the motion.
DISCUSSION
On March 23, 2012, Trinh pled guilty to (1) count one for conspiracy to manufacture, to possess with intent to distribute, and to distribute marijuana, in violation of 18 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(vii); and (2) count two for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On June 22, 2012, this Court sentenced Trinh to 180 months imprisonment, followed by five years of supervised release.
Pursuant to the Northern District of California's Miscellaneous Order 2019.01.25, the Court referred Trinh's First Step Act motion to the Office of the Federal Public Defender. On May 6, 2019, Office of the Federal Public Defender filed a statement stating that it had reviewed the motion and that the office did not seek appointment to represent Trinh with regard to the motion. Dkt. No. 252.
"Section 404 permits a federal district court to resentence a defendant based on the Fair Sentencing Act's revised statutory penalties for crack cocaine offenses." United States v. Lewis, No. CR 08-0057 JB, 2019 WL 1923047, at *22 (D.N.M. Apr. 30, 2019) (citing Section 404 of the First Step Act). Defendant is not eligible for a sentence reduction under the First Step Act because he was convicted of an offense involving marijuana, not crack cocaine. See United States v. Drayton, No. CR 10-20018-01-KHV, 2019 WL 464872, at *2 (D. Kan. Feb. 6, 2019) ("Section 404, however, applies to defendants who were sentenced for an offense involving crack cocaine that was committed before August 3, 2010. Defendant was convicted of an offense involving powder cocaine and marijuana. For these reasons, the Court lacks jurisdiction to reduce defendant's sentence under the First Step Act."); see also United States v. Gonzalez-Oseguera, No. CR 06-00593 HG-01, 2019 WL 1270916, at *2 (D. Haw. Mar. 19, 2019) (denying a First Step Act motion because the defendant was convicted of an offense involving methamphetamine). Accordingly, the Court DENIES defendant's motion for a sentence reduction pursuant to Section 404 of the First Step Act.
Defendant's May 2, 2019 filing also requests that the Court provide the following: (1) a copy of the docket sheet; (2) forms to file a motion pursuant to 28 U.S.C. § 2255; (3) forms to file in forma pauperis; (4) a court-appointed attorney; (5) forms to file a civil rights complaint pursuant to 42 U.S.C. § 1983; and (6) "whom is the current chief judge."
The Court directs the Clerk to mail defendant a copy of the docket in this case, and the Court informs defendant that the current Chief Judge of the Northern District of California is Judge Phyllis Hamilton.
With regard to defendant's request for a form to file a Section 2255 motion, the Court informs defendant that he previously filed a motion pursuant to 28 U.S.C. § 2255, Dkt. No. 161, which this Court denied, Dkt. No. 213, and both this Court and the Ninth Circuit denied a certificate of appealability. Dkt. Nos. 219, 228.1 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, defendant may not file a second or successive motion pursuant to Section 2255 unless he first applies to the appropriate court of appeals for an order authorizing the district court to consider the motion. See 28 U.S.C. §§ 2244(b)(3), 2255(h). The Court has enclosed the Ninth Circuit's application for leave to file a second or successive motion pursuant to Section 2255. Defendant may not file a Section 2255 motion in this Court unless he first receives permission from the Ninth Circuit to do so. The Ninth Circuit has several different forms for proceeding in forma pauperis and requesting appointment of counsel, and defendant should request those forms from the Clerk of the Ninth Circuit Court of Appeals (or access them online at https://www.ca9.uscourts.gov/forms/pro_se_litigants.php).
The Court DENIES defendant's request for appointment of counsel in this case.
Finally, with regard to defendant's request for a form to file a civil rights complaint under 42 U.S.C. § 1983, the Court notes that defendant is an inmate at D. Ray James Correctional Institution in Georgia. The Court informs defendant that if he wishes to file a civil rights action under 42 U.S.C. § 1983 to challenge federal constitutional or statutory violations by state actors which affect the conditions of confinement, such a lawsuit must be filed in the appropriate district court in Georgia, not the Northern District of California. Accordingly, defendant should obtain the necessary forms from the Georgia federal courts.
IT IS SO ORDERED.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
INSTRUCTIONS for Form 12. Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254 or Motion under 28 U.S.C. § 2255
Read these instructions carefully.
1. The application, whether handwritten or typewritten, must be legible and signed by the applicant under penalty of perjury. An original must be provided to the Clerk of the Ninth Circuit. The application must comply with Circuit Rule 22-3, which is attached to these instructions.
2. All questions must be answered concisely. Add separate sheets if necessary.
3. If this is a capital case, the applicant shall serve a copy of this application and any attachments on respondent and must complete and file the proof of service that accompanies this form. If this is not a capital case, service on the respondent is not required.
4. The proposed 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion that applicant seeks to file in the district court must be included with Form 12.
5. Applicants seeking authorization to file a second or successive section 2254 habeas corpus petition shall include copies of all relevant state court decisions if reasonably available.
Mail Form 12 to the court at:
Clerk, U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
CIRCUIT RULE 22-3. APPLICATIONS FOR AUTHORIZATION TO FILE SECOND OR SUCCESSIVE 28 U.S.C. § 2254 PETITION OR § 2255 MOTION — ALL CASES; STAY OF EXECUTION — CAPITAL CASES
(a) Applications. An applicant seeking authorization to file a second or successive 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in the court of appeals demonstrating entitlement to such leave under sections 2254 or 2255. See Form 12. An original in paper format of the application must be filed with the Clerk of the court of appeals unless the application is submitted via the Appellate Electronic Filing System. No filing fee is required. If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. If an unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the district court may, in the interests of justice, refer it to the court of appeals. (Rev. 12/1/09; Rev. 7/1/13; Rev. 7/1/16; Rev. 12/1/18)
The applicant must:
(1) include Form 12 if submitted by an applicant not represented by counsel;
(2) include the proposed section 2254 petition or section 2255 motion that the applicant seeks to file in the district court;
(3) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and
(4) state how the requirements of sections 2244(b) or 2255 have been satisfied.
(b) Attachments. If reasonably available to the applicant, the application must include copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev 7/1/16)
(c) Service.
(1) Capital Cases: In capital cases, the applicant must serve a copy of the application, attachments, and proposed section 2254 petition/section 2255 motion on the respondent, and must attach a certificate of service to the application filed with the Court. (Rev. 7/1/16)
(2) Noncapital Cases: In noncapital cases, service of the application on the respondent is not required. (New 7/1/16)
(d) Response.
(1) Capital Cases: In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental attachments as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental attachments within 14 days of the date the application is served. (Rev. 12/1/09)
(2) Noncapital Cases: In noncapital cases, no response is required unless ordered by the Court. Respondent may include supplemental attachments with its response. (Rev. 7/1/16)
(e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the Court will grant or deny the application, and state its reasons therefore, as soon as practicable.
(f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel immediately. If the Court grants leave to file a second or successive application, the Court shall stay the applicant's execution pending disposition of the second or successive petition by the district court. (Rev. 12/1/18)
Cross Reference:
• Circuit Rule 25-5. Electronic Filing on page 84, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3.
The district court is required to transfer mistakenly filed applications for authorization to file a second or successive section 2254 petition or 2255 motion. If an applicant files a document that appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim based on a new rule of constitutional law or newly discovered evidence of actual innocence, the district court may transfer the filing to the court of appeals in the interests of justice or, in the alternative, the district court may dismiss the filing without prejudice to the applicant seeking authorization from the court of appeals on Ninth Circuit Form 12.
The rule requires applicants to provide the court of appeals with the proposed petition or motion. Pro se applicants are encouraged to use the form petition or motion adopted by the district court where the applicant anticipates filing the document. (New 7/1/16)
