United States District Court, W.D. North Carolina, Charlotte Division
J. Cold, Jr. United States District Judge
MATTER is before the Court upon Thang Toan Cao's
pro se Motion to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255. (Doc. No. 1).
indicted on May 24, 2006, of conspiracy to possess with
intent to distribute and distribute methamphetamine (Count
One) and conspiracy to commit money laundering (Count Two).
Superseding Indict., Doc. No. 105. On December 15, 2006, he
pled guilty to Count One pursuant to a plea agreement, and
the Government agreed to dismiss Count Two. Plea Agree., Doc.
No. 198; Accept. Plea, Doc. No. 207. The Court sentenced Cao
to 87 months in prison and three years of supervised release;
judgment was entered on December 5, 2007. J., Doc. No. 288.
Cao filed a direct appeal, and on June 2, 2009, the Fourth
Circuit Court of Appeals issued an unpublished opinion
affirming the judgment. United States v. Cao, 326
Fed.Appx. 146, 2009 WL 1524945 (4th Cir. 2009).
to Federal Bureau of Prisons (“BOP”) records, Cao
was released from BOP custody on July 31, 2012, after
completing his active sentence. See Fed. Bureau of
Prisons, https://www.bop.gov/inmateloc/ (last viewed June 15,
2018). His term of supervised release ran for three years
without modification or revocation until it expired on or
about July 31, 2015.
a citizen of Vietnam and a permanent resident of the United
States. Presentence Investigation Report 2, Cao,
3:06-cr-00055-RJC-20, Doc. No. 343 (sealed). Sometime in
August 2017, the Department of Homeland Security began
deportation proceedings against him. See 28 U.S.C.
§ 2241 Pet., Thang v. Jenkins, et al.,
4:18-cv-10014-KMM (S.D. Fl. filed Feb. 16, 2018), Doc. No. 1.
March 6, 2018, Cao filed the instant document, which is
titled “Motion to vacate plea and supporting memorandum
of law, cancelations [sic] of removal, ” in the United
States District Court for the Southern District of Florida.
(Doc. No. 1, United States v. Cao, 3:18-cv-00226-RJC
(W.D. N.C. )). The court construed it as a motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. §
2255 because Cao attacks his December 2007 judgment,
see R. & R., 1:18-cv-20862-JEM (S.D. Fl.), Doc.
No. 4; the court ordered the action transferred to this Court
where judgment was entered, see id. at Doc. Nos.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing
Section 2255 Proceedings in the United States District Courts
provides that courts are to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings . . .” in order to
determine whether the petitioner is entitled to any relief on
the claims set forth therein. After examining the record in
this matter, the Court finds that this action can be resolved
without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
Motion, Cao claims trial counsel rendered ineffective
assistance by failing to warn him that a guilty plea to Count
One would subject him to deportation. He seeks vacation of
his plea pursuant to Padilla v. Kentucky, 559 U.S.
2255 provides that “[a] prisoner in custody under
sentence of a court established by Act of Congress” may
move to vacate, set aside, or correct his sentence. §
2255(a). This language requires that a § 2255 petitioner
be “in custody” under the conviction or sentence
under attack at the time his motion is filed. See Maleng
v. Cook, 490 U.S. 488, 490-91 (1989) (discussing
“in custody” requirement for district court
jurisdiction over petition for habeas relief from state
conviction under 28 U.S.C. § 2254). Once a
petitioner's sentence has fully expired, he is not
“in custody, ” notwithstanding the collateral
consequences to which he may still be subject: “[O]nce
the sentence imposed for a conviction has completely expired,
the collateral consequences of that conviction are not
themselves sufficient to render an individual ‘in
custody' for the purposes of a habeas attack on
it.” Id. at 492; see also United States v.
Esogbue, 357 F.3d 532, 534 (5th Cir. 2004) (recognizing
that the Supreme Court's analysis in Maleng
“applies equally when a movant is no longer in federal
custody for the purpose of § 2255 relief where the
sentence imposed for that conviction has expired”).
the conviction and sentence Cao challenges fully expired once
he served both the active sentence of imprisonment and his
term of supervised release. Notwithstanding the collateral
consequences he now asserts warrant relief, he is not
“in custody” under the conviction he now attacks,
and this Court therefore lacks jurisdiction to adjudicate his
§ 2255 motion. Accordingly, the Motion to Vacate must be
IS, THEREFORE, ORDERED that Petitioner's Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 (Doc. No. 1) is DISMI ...