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REPORT AND RECOMMENDATION 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TIEN SIN JIANG,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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CASE NO. C06-0027-TSZ-MAT

(CR95-732-TSZ)

REPORT AND RECOMMENDATION 

INTRODUCTION

Petitioner Tien Jiang is a federal prisoner serving a 262-month sentence for kidnapping and

related charges. Petitioner has filed, through counsel, a petition pursuant to 28 U.S.C. § 2255,

attacking his conviction. Respondent has filed a response and petitioner has filed a reply. After

reviewing the submissions of the parties and the balance of the record, the court concludes, as set

forth in more detail below, that the petition should be denied.

BACKGROUND

The Ninth Circuit Court of Appeals summarized the facts leading to petitioner’s conviction

as follows:

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REPORT AND RECOMMENDATION 

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This case involves the kidnapping of three illegal Chinese immigrants.

Appellants, also illegal Chinese immigrants, held the victims captive in a rented house

in the Seattle area for nine days until the FBI intervened and rescued the 

victims. The kidnapping began on August 24, 1995, when two males and a female

were lured to a rented home where they were held captive by all four appellants and

two additional (now fugitive) coconspirators. The victims were nationals of the

People's Republic of China (PRC) who upon arriving in the United States had been

detained by INS authorities and placed in Tacoma area foster homes. Upon arrival

at the rented house, the victims were restrained, stripped, and bound with duct tape

Over the next nine days appellants initiated calls to the families of the victims,

demanding ransom money in exchange for the victims' lives. During this time the

victims were subjected to brutal assaults in addition to threats of death, torture, and

mutilation. The female victim was raped by one of the coconspirators, who is now

a fugitive. On September 2, 1995, FBI agents came and rescued the victims. The

two male victims had been scheduled to be killed that evening. Li Lin, Fei Lin, Shun

Hu, and Jiang were tried together. All but Jiang testified. Li Lin, Fei Lin, and Shun

Hu testified that they themselves were victims who had been abducted and beaten, and

forced by smugglers known as “Snakeheads” to beg their families for ransom. When

they were unable to pay the ransom, the Snakeheads coerced them into participating

in holding the three victims under threat of murder to themselves and their families if

they failed to do so.

The jury returned guilty verdicts for Jiang, Li Lin, Fei Lin, and Hu on all

counts of the indictment. The district court sentenced Li Lin, Fei Lin, and Hu to 360

months of imprisonment each and Jiang to 262 months imprisonment. Each appellant

filed a timely notice of appeal.

United States v. Fei Lin, 139 F.3d 1303, 1305 (9th Cir. 1998).

PROCEDURAL HISTORY

Petitioner appealed his conviction and sentence to the Ninth Circuit. The Ninth Circuit

affirmed the conviction and sentence in a decision that was published in part. United States v. Fei

Lin, 139 F.3d 1303 (9th Cir. 1998); 141 F.3d 1180 (Memorandum Disposition issued March 30,

1998). Petitioner filed a petition for certiorari with the Supreme Court; the Court denied the

petition on October 5, 1998.

Petitioner’s counsel filed the instant petition under 28 U.S.C. § 2255 on January 6, 2006.

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REPORT AND RECOMMENDATION 

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(Doc. #1). Respondent filed its response on January 31, 2006. (Doc. #6). Petitioner filed his

reply on February 21, 2006. (Doc. #8). The court directed petitioner to cure a procedural defect

in the petition and petitioner did so on March 24, 2006. (Doc. #10). The petition is now ready

for review.

GROUNDS FOR RELIEF

Petitioner raises three grounds for relief in his petition:

1. The court lacked jurisdiction because there was a genuine issue of fact

as to [petitioner’s] age and there was no proof that [he] had attained [his] 18th

birthday at the time of the offenses.

2. The court applied sentencing enhancements pursuant to the mandatory

sentencing guideline system without jury findings and without using the standard of

proof of beyond a reasonable doubt.

3. The court sentenced [petitioner] to 262 months where the maximum

sentence pursuant to the Federal Juvenile Delinquency Act if [he] were 17 at the time

of the offense is 5 years.

(Doc. #1 at 4).

The court will address each of these claims in turn.

DISCUSSION

1. Petitioner’s Claim that the District Court Lacked Jurisdiction.

Petitioner first contends that the trial court lacked jurisdiction over him because there was

no conclusive proof that he was 18 years of age or older when he committed the offense. During

sentencing, the district court stated: “Well, for purposes of your client I find that we don’t know

what his birth date is. There are numerous dates that were used by him or in processing him after

he was captured. And the Court has held an extensive hearing on that issue pretiral to determine

whether or not he should be tried as a juvenile or considered to be tried. I made a finding that [he]

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REPORT AND RECOMMENDATION 

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had not met your burden of proof. I found that [he] had the burden of proof. And I make no

finding with respect to his birth date other than to find that he’s used several dates and we don’t

know what his true birth date is.” (Doc. #1, Ex. C at 2442).

Petitioner argues that without conclusive proof of his birth date, the district court lacked

jurisdiction to try him under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042.

(Doc. #1, Memorandum at 5). Petitioner further argues that if he were 17 at the time of the

offenses, the maximum sentence he could have received would have been 60 months, instead of

the 262-month sentence he received. (Doc. #8 at 2, citing 18 U.S.C. § 5037(c)(2)(14)).

Petitioner requests an evidentiary hearing to enable him to present evidence regarding his age.

(Doc. #8 at 2).

Respondent argues that petitioner’s jurisdictional argument is foreclosed by the fact that

he raised this claim in his direct appeal and the Ninth Circuit rejected it. See United States v. Fei,

141 F.3d 1180, Unpublished Memorandum Disposition (9th Cir. 1998). The Ninth Circuit

reviewed the claim as follows:

The district court held a hearing on the matter during which the government

presented evidence showing that Jiang had an extensive history of providing

authorities with dates of birth that showed him to be just under eighteen at the time

of apprehension. This evidence, coupled with Jiang's failure to provide the court with

credible or reliable evidence of his age, resulted in the district court's conclusion that

Jiang could be tried as an adult. The district court properly denied Jiang's motion to

dismiss for lack of jurisdiction. See United States v. Frasquillo-Zamosa, 626 F.2d 99,

101 (9th Cir. 1980) (noting that the age of the accused, particularly where the accused

is an alien, is a fact which may be peculiarly within the knowledge of the accused and

not susceptible to independent proof).

(Id. at *1-2).

Petitioner attempts to challenge the above ruling by the Ninth Circuit by contending that

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the case upon which the Ninth Circuit relied, Frasquillo-Zamosa, has been undermined by a more

recent decision. (Doc. #8 at 3, citing United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir.

2003)). The court notes initially that petitioner raised this argument for the first time in his reply

brief, which precluded respondent from being able to address it. (Doc. #8 at 3). The court could

reject petitioner’s argument purely on the ground that claims raised for the first time in a reply

brief will not be considered. See United States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986).

However, even if the argument had been properly raised in the petition, petitioner is

precluded from relitigating this claim via a collateral attack under § 2255. “[C]laims will ordinarily

not be entertained under § 2255 that have already been rejected on direct review.” Reed v. Farley,

512 U.S. 339, 358 (1994). In order to overcome the relitigation bar, a petitioner must show either

manifest injustice or a change in the law that applies retroactively. See Polizzi v. United States,

550 F.2d 1133, 1135 (9th Cir. 1976); 28 U.S.C. §2255(3). Petitioner fails to show either manifest

injustice or that the new rule allegedly announced in Ceja-Prado applies retroactively.

Accordingly, petitioner’s first ground for relief should be denied.

2. Petitioner’s Claim that the District Court Improperly Enhanced His Sentence.

Petitioner next argues that the district court unconstitutionally applied sentencing

enhancements to petitioner’s sentence, in violation of United States v. Booker , 125 S. Ct. 738

(2005), the Supreme Court decision that invalidated the mandatory nature of the federal

sentencing guidelines. (Doc. #1, Memorandum at 4). Petitioner, however, does not specify any

particular enhancement that the district court improperly applied; rather it appears that petitioner’s

claim is actually that the district court was precluded by the sentencing guidelines from

considering a factor – petitioner’s youth – which could have resulted in a lesser sentence. (Doc.

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#1 at 6).

Respondent counters that petitioner’s argument is barred by the non-retroactivity of

Booker. Respondent cites the Ninth Circuit decision of United States v. Cruz, 423 F.3d 1119 (9th

Cir. 2005), for the proposition that claims based upon Booker may not be brought via a § 2255

petition.

Petitioner attempts to distinguish Cruz by arguing that Booker rested upon two distinct

provisions of the Constitution – the Sixth Amendment right to trial by jury and the Fifth

Amendment right to due process – and that Cruz addressed only the Sixth Amendment prong of

Booker. Petitioner thus advances the novel argument that the Fifth Amendment portion of Booker

applies retroactively, while conceding that the Sixth Amendment portion does not. (Doc. #8 at

7).

Petitioner’s argument has several flaws. First and foremost, petitioner cites no binding

authority for the proposition that the Fifth Amendment component of Booker applies retroactively.

Under § 2255(3), claims such as petitioner’s that are based upon new rights must be made

retroactive by the Supreme Court. The only authority cited by petitioner is a law review article,

which appears not to have been adopted by any court, let alone the Supreme Court.

Second, petitioner’s contention that the district court would have imposed a lesser

sentence had the court been free to consider petitioner’s age seems entirely speculative. Petitioner

cites nothing in the record that indicates that the court would have been inclined to lower his

sentence based upon petitioner’s age. Indeed, a review of the transcript provided by petitioner

reveals that while the district court found petitioner to be the “least culpable” of the defendants,

and awarded him a two-point reduction on that basis, the court resisted counsel’s efforts to further

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1

 The court’s review of petitioner’s third claim is hampered by the lack of headings in

petitioner’s briefs. For example, within the “Discussion” section of petitioner’s briefs, there is

nothing to delineate petitioner’s three distinct claims, and as a result, it is unclear what part of the

discussion applies to which claim. See generally, Anne Enquist and Laurel Currie Oates, Just

Writing 23 (Aspen 2001) (“[H]eadings are invaluable to readers.”).

REPORT AND RECOMMENDATION 

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reduce petitioner’s sentence. (Doc. #1, Ex. C at 2481-87). For these reasons, petitioner’s second

ground for relief should be denied.

3. Petitioner’s Claim that the District Court Improperly Sentenced Petitioner.

Petitioner’s final claim is unclear. The claim as it appears in the petition is quoted in the

section of this Report and Recommendation entitled “Grounds for Relief.” Supra at 3. Petitioner

asserts that the district court, when it sentenced petitioner, did not know his precise age at the time

of the offense, but knew petitioner to be either 17 or 18 years old. (Doc. #1 at 4). Petitioner

implies that because the court was unsure of his age, it was precluded from imposing a sentence

greater than the 5-year maximum Congress has prescribed for juveniles. See 18 U.S.C. §

5037(c)(2)(A). Petitioner’s final claim thus appears to be a variant of his first claim, that the

district court lacked jurisdiction because it did not conclusively find that he was 18 at the time of

the offense.1

As support for this argument, petitioner relies upon Booker and another Supreme Court

case, Roper v. Simmons, 543 U.S. 551 (2005), which held that the Eighth Amendment bars the

execution of persons who were juveniles at the time of the offense. (Doc. #8 at 6-7). However,

petitioner’s reliance is misplaced. Booker does not apply retroactively, as discussed earlier, and

Roper does not address the present situation of uncertainty regarding an offender’s age. The

offender in Roper was undisputably 17 at the time of the offense. See 543 U.S. at 555. Therefore,

neither of these two cases support petitioner’s argument. Because petitioner cites no other

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authority, his third and final claim lacks support and should be denied.

CONCLUSION

For the foregoing reasons, the court recommends that petitioner’s petition pursuant to 28

U.S.C. § 2255 be denied with respect to each of petitioner’s claims. Because the record

conclusively establishes that petitioner is not entitled to relief, an evidentiary hearing is not

required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). A proposed Order

accompanies this Report and Recommendation.

DATED this 24th day of March, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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