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Nyuon v. United States

United States District Court, D. South Dakota, Southern Division

April 27, 2017

EMMANUEL WILLIAM NYUON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner, Emmanuel William Nyuon, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. The government now moves to dismiss the petition for failure to state a claim. Docket 13. The matter was assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014 standing order. Magistrate Judge Duffy recommends that the petition be dismissed, Docket 19, and Nyuon objects. Docket 23. Nyuon also moves for an evidentiary hearing and to reverse the report and recommendation. Docket 26; Docket 27. For the following reasons, the court adopts Magistrate Judge Duffy's report and recommendation, dismisses Nyuon's petition, and denies Nyuon's motions.

         FACTUAL BACKGROUND[1]

         A jury found Nyuon guilty of sex trafficking of a child, and conspiring to engage in sex trafficking of a child. United States v. Nyuon, 587 F. App'x 346, 346 (8th Cir. 2014). The district court sentenced him to a 360-month sentence. Id. Nyuon appealed, and the Eighth Circuit Court of Appeals affirmed his conviction. Id.

         On January 19, 2016, Nyuon filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. Nyuon argued that his trial attorney provided ineffective assistance both at trial and on appeal. Id. The Government moved to dismiss Nyuon's petition because he had failed to state a claim and because he had waived certain defenses. Docket 13.

         On September 6, 2016, Magistrate Judge Duffy filed her report and recommendation. Docket 19. She recommended that the Government's motion to dismiss be granted. Id. Nyuon was given until September 20, 2016, to file objections. Id. On September 19, 2016, Nyuon moved to extend this deadline, Docket 21, and the court granted his motion, extending the deadline to October 1, 2016. Docket 22. On October 6, 2016, Nyuon filed his objections. Docket 22. He later filed a motion seeking an evidentiary hearing, Docket 26, and a motion to reverse the report and recommendation. Docket 27.

         STANDARD OF REVIEW

         The court's review of a Magistrate Judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         DISCUSSION

         I. Nyuon's Objections

         Nyuon objects to a number of sections in the report and recommendation. In objection 1, Nyuon objects to the report and recommendation as a whole. Docket 23 at 3. He argues that the Government's memorandum in support of its motion to dismiss “is largely a verbatim statement” of the report and recommendation. Id. This is neither true nor a specific objection. See Fed. R. Civ. P. 72(b). Nyuon states that he discusses his specific examples in the other objections. Therefore, this objection is overruled.

         Nyuon argues in Objections 2, 3, 5-7, 9-17, 19, 20, 22, 23 that certain statements in the report and recommendation should not be adopted because they assume evidence not in the record or “lack foundation.” After de novo review, the court determines that the evidence cited in these statements is in the record in the form of witness testimony at trial. See CR Dockets 213 & 214. The factual statements quoted by Nyuon are fairly stated and properly cited in the report and recommendation.

         Nyuon also argues that these statements are hearsay. “ ‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” United States v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008) (quoting Fed.R.Evid. 801(c)). Because Magistrate Judge Duffy is not a declarant and the report and recommendation is not testimony, these statements are not hearsay. Therefore, these objections are overruled.

         In objections 13 and 14, Nyuon argues that certain statements in the report and recommendation were contradicted on cross-examination. Not only is that irrelevant to his habeas claims, but this testimony was not contradicted by cross-examination. Therefore, these objections are overruled.

         In objections 9 and 10, Nyuon argues that certain statements in the report and recommendation were inflammatory and suggest that he is a violent person. The statements, however, are taken from the evidence presented at trial. Nyuon also argues in objection 10 that the victim did not testify that she was scared of him. This is not true, and the report and recommendation provides an accurate citation to that portion of the victim's testimony. Docket 19 at 14 (citing CR Docket 213 at 133). Therefore, these objections are overruled.

         In objection 12, Nyuon argues that certain statements in the report and recommendation were impermissibly suggestive. That portion of the report and recommendation states the facts of the case; it does not suggest anything. The portion Nyuon objects to is taken directly from the victim's testimony at trial and is properly cited. Therefore, this objection is overruled.

         In objection 4, Nyuon argues that the report and recommendation does not provide certain facts including the facts leading up to his arrest, the charges he was originally arrested on, information concerning an immigration hold placed on him while he was incarcerated in the Minnehaha County Jail, or information concerning the case being transferred from the state to the federal government. The report and recommendation does not need to contain these facts. Their addition would not affect the analysis of Nyuon's habeas claims, and he does not explain why they are necessary. Therefore, this objection is overruled.

         In objection 5, Nyuon argues that the statement in the report and recommendation that “Mr. Statom made the referral because the photographs appeared to depict a girl who was under the age of majority” assumed facts not in the record. Docket 19 at 7-8. Statom, an employee at Backpage.com, on which Nyuon posted ads in order to traffic the victim, actually only testified that the person in the ad “might have been young[.]” CR Docket 213 at 23. This difference does not affect the analysis of Nyuon's habeas claims. Therefore, this objection is overruled.

         In objection 7, Nyuon argues that the statement “Mr. Eirinberg objected several times; then he asked for and received a standing objection” should be struck from the report and recommendation because it fails to state to what Eirinberg received a standing objection. Docket 19 at 13. Eirinberg asked for and received a standing objection to the relevancy of S.J.'s testimony concerning her family life and social habits. CR Docket 213 at 113. This specification does not affect the analysis of Nyuon's habeas claims. Therefore, this objection is overruled.

         In objection 8, Nyuon argues that the statement “He took them to a barbeque at some apartments on the east side of Sioux Falls” lacks specificity and “some apartments” must be replaced with a more specific term. Docket 19 at 13. “[S]ome apartments on the east side” is how S.J. described that destination in her testimony, and no further information is necessary. Therefore, this objection is overruled.

         In objection 18, Nyuon argues that the statement that Amber Traversie “was a reluctant witness, appearing via subpoena” was “misleading and misconstrue[d] the facts.” Docket 19 at 20; Docket 23 at 13. Nyuon argues that Traversie was not “reluctant” but was forced to testify under the “threat of prosecution in this case.” Docket 23 at 13. Traversie testified that she did not want to testify in court and that she was subpoenaed. CR Docket 214 at 54.

         The court issued an arrest warrant for Traversie. CR Docket 183. While Traversie testified that she had been threatened with prosecution, those threats were made during the investigation and in order to convince Traversie to help in the investigation. See Docket 214 at 70-72. When asked if she would be arrested if she did not say what the prosecution wanted, Traversie said she did not know. Id. at 75. A subpoena was the instrument by which Traversie was forced to testify, and Nyuon does not explain why he believes Traversie was threatened with prosecution for the crimes he was tried for if she did not testify.

         Nyuon and Magistrate Judge Duffy described the same fact in different ways, and this does not affect Nyuon's habeas claims. Even if Traversie was forced to testify, Eirinberg elicited this information in his cross-examination of ...


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