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United States v. Kao

United States District Court, Third Circuit

September 19, 2013




The case of Defendant Vutha Kao is once again before the Court for resolution of Defendant’s Request for a Certificate of Appealability. For the reasons set forth below, the request shall be denied.

History of the Case

In December, 2007, Mr. Kao was convicted for (1) his participation in a conspiracy to distribute MDMA (“ecstasy”); (2) possession of MDMA with intent to distribute; (3) possession of a firearm by a convicted felon; and (4) possession of a firearm in furtherance of a drug trafficking offense. The charges brought against Mr. Kao came about after a Pennsylvania State Trooper stopped the SUV which Kao was driving for speeding. It was during the course of this stop and while asking some routine questions that the Trooper noticed the muzzle of a firearm protruding from the space beneath the passenger seat where Kao’s co-defendant Jeremy Warren, had been sitting. After removing Kao and Warren from the vehicle and placing them under arrest, the Trooper obtained and executed a search warrant for the vehicle which subsequently yielded the firearm, ammunition and a box containing a large amount of pills. The pills, some 45, 000 of them, were later determined to be ecstasy with an estimated street value of nearly $1 million.

Further investigation revealed that Kao and Warren had been hired by co-defendants Minh La and Roberck Suon to transport the drugs from Philadelphia to Atlanta and that in furtherance of their employment, La and Suon had given Warren and Kao the firearm found during the stop. This weapon was later inspected by an ATF expert who found that it fit the definition of a “short-barreled rifle” in violation of 18 U.S.C. § 922 insofar as it had been originally manufactured as a carbine rifle but was later modified by removal of the butt stock and cutting down the barrel such that its overall length was less than 26 inches and thereby more easily concealed.

Prior to trial, Defendants moved to suppress evidence regarding the machine gun, arguing that it did not meet the statutory requirements of 18 U.S.C. § 924(c)(1). Defendants also claimed that the gun’s presence in the car was not used towards the commission of a crime but rather that they were transporting the gun for Suon in order to get it fixed. These motions were denied, Defendants were convicted and Kao was sentenced to 360 months in prison.

Defendants thereafter appealed their cases, which had been consolidated. In addition to contending that this Court erred in denying their motions to suppress the gun evidence, Defendants argued that the District Court should not have admitted testimony from cooperating witnesses that the Defendants had owed them money from a prior consignment of ecstasy pills. Lastly, Defendants asserted that their sentences did not reflect their minor roles in the drug trafficking organization and should be reduced. These arguments were rejected by the Third Circuit and the judgments of the District Court were affirmed on January 14, 2010.

Thereafter, on August 1, 2012, Defendant Kao, proceeding pro se, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct his sentence. In this motion, Defendant Kao claimed that (1) he received ineffective assistance of counsel; and (2) that his sentence was erroneously enhanced utilizing a prior conviction that does not exceed 1 year. Specifically, Kao claimed that his counsel, Thomas Bellwoar, negligently failed to maintain adequate communication with him in that he failed to notify him that the direct appeal of his conviction had been rejected nearly two years earlier. As such, Defendant missed the one-year period during which he could file for collateral relief. In reliance on these assertions, Kao sought equitable tolling of the one year limitations period set forth in 28 U.S.C. § 2255(f). In addition, Kao also claims that Mr. Bellwoar was ineffective for failing to argue that the Government did not prove, beyond a reasonable doubt, that Defendant was in violation of 18 U.S.C. § 924(c)(1) and thus his conviction for this offense should be overturned.

In response, the Government moved to dismiss the motion to vacate, set aside or correct for the reason that it was untimely filed and Defendant had failed to demonstrate the due diligence requisite to invoking the doctrine of equitable tolling. We agreed with the Government’s argument and, via Order dated April 4, 2013, granted the motion to dismiss Kao’s § 2255 motion. We write now in response to the Court of Appeals’ remand for the purpose of either issuing a Certificate of Appealability or giving the reasons for a refusal to do so and in answer to Defendant’s Request for a Certificate of Appealability (ECF. No. 435).


Under 28 U.S.C. § 2253(a), “[i]n a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.” That having been said, however, while a final order may be “subject to review, ”

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from -
(A) the final order in a proceeding under ...

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