UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TUAN M. PHAM, 

 Defendant - Appellant. 

No. 14-3204 

(D.C. Nos. 6:14-CV-01121-MLB & 

6:99-CR-10110-MLB-2) 

(D. Kan.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before KELLY, EBEL, and O’BRIEN, Circuit Judges. 

 

 Tuan M. Pham seeks a certificate of appealability (COA) to appeal from the 

district court’s dismissal of his petition for common-law writs as a second or 

successive 28 U.S.C. § 2255 motion that the district court lacked jurisdiction to 

address. We deny a COA and dismiss this matter. 

Background 

 In 2000, Mr. Pham was convicted of fourteen charges: five counts of robbery 

in violation of 18 U.S.C. § 1951; one count of conspiring to use a firearm during a 

crime of violence in violation of 18 U.S.C. § 924(o); seven counts of using, carrying, 

 

* This order is not binding precedent except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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or brandishing a firearm during a crime of violence in violation of 18 U.S.C. 

§ 924(c)(1); and one count of being a felon in possession of a firearm in violation of 

18 U.S.C. § 922(g)(1). The district court sentenced him to 1,076 months of 

imprisonment, $27,381.22 in restitution, and $1,400 in statutory special assessments 

($100 for each count). Mr. Pham unsuccessfully appealed and then unsuccessfully 

pursued relief under § 2255. 

 In April 2014, Mr. Pham filed in the district court a “Petition for the Common 

Law Writ of Audita Querela, Prohibition, Mandamus, Bail, and For Any Other 

Extraordinary Relief, Including, But Not Limited To, Declaratory Judgment as to 

Satisfaction of Judgment.” The district court construed the filing as a second or 

successive § 2255 motion and dismissed it for lack of jurisdiction. Mr. Pham moved 

for reconsideration under Fed. R. Civ. P. 59(e) and 60, which the district court 

denied. Mr. Pham now seeks to appeal. 

Analysis 

 To appeal, Mr. Pham must obtain a COA. See United States v. Harper, 

545 F.3d 1230, 1233 (10th Cir. 2008). For a COA, he must show “that jurists of 

reason would find it debatable whether the petition states a valid claim of the denial 

of a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). “Under the controlling standard, a petitioner must show that reasonable 

jurists could debate whether (or, for that matter, agree that) the petition should have 

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been resolved in a different manner or that the issues presented were adequate to 

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 

(2003) (brackets and internal quotation marks omitted).1

 Mr. Pham claims that his petition should not be subject to the restrictions on 

second or successive § 2255 motions because it addressed only the restitution orders 

and the special assessments, which, he argues, cannot be challenged under § 2255. 

See United States v. Hernandez, 94 F.3d 606, 612-13 (10th Cir. 1996) (holding that 

§ 2255 did not establish district court’s jurisdiction to vacate conspiracy conviction 

when sentence carried no term of imprisonment, but only the special assessment). In 

light of Hernandez, reasonable jurists could debate whether a claim challenging only 

restitution and special assessments could properly be brought under § 2255. 

Nevertheless, the district court correctly treated most of Mr. Pham’s claims as second 

or successive § 2255 claims. 

First, despite his disclaimers, Mr. Pham contends that his convictions—not just 

the restitution orders and the special assessments—must be vacated under the 

Supreme Court’s recent decisions in Rosemond v. United States, 134 S. Ct. 1240 

(2014); Alleyne v. United States, 133 S. Ct. 2151 (2013); and Peugh v. United States, 

133 S. Ct. 2072 (2013). Because they attack his convictions, these claims clearly 

 

1

 Before this court, Mr. Pham attempts to incorporate by reference his 

district-court petition and memorandum. Because incorporation by reference of 

district-court filings is not proper appellate briefing, see Gaines-Tabb v. ICI 

Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998), we consider only the 

arguments raised in Mr. Pham’s brief. 

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were unauthorized second or successive § 2255 claims, and no reasonable jurist could 

dispute the district court’s dismissal of those claims for lack of jurisdiction. See In re 

Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) (holding that district court 

has no jurisdiction to decide unauthorized second or successive § 2255 claims).2

 

 Second, some of the claims Mr. Pham ostensibly directs toward restitution and 

the special assessments would, if successful, necessarily result in vacating the 

convictions and sentences of imprisonment. These claims include (1) the contention 

that the district court illegally imposed consecutive special assessments on concurrent 

sentences (which appears to be based on a theory that the underlying convictions 

were duplicitous or multiplicious); (2) the contention that because Mr. Pham has 

fully paid the special assessments, he has satisfied the judgment against him and can 

no longer be incarcerated (which appears to be based on a theory that the district 

court could not order both incarceration and a special assessment as punishment for 

his offenses); and (3) the contention that counsel was ineffective in failing to argue 

double jeopardy and excessive fines and penalties. Because each of Mr. Pham’s 

convictions carried a sentence of imprisonment, these claims could have been 

 

2

 To the extent that Mr. Pham believes that § 2255(h) does not apply when a 

new Supreme Court case overturns circuit precedent, he is incorrect. See Prost v. 

Anderson, 636 F.3d 578, 589 (10th Cir. 2011) (“[I]n subsection (h) Congress 

identified the excuses it finds acceptable for having neglected to raise an argument in 

an initial § 2255 motion. Failing to pursue novel statutory interpretations is not on 

that list, though Congress was aware situations like this one might arise and fully 

intended § 2255(h) to bar otherwise meritorious successive petitions. The simple fact 

is that Congress decided that, unless subsection (h)’s requirements are met, finality 

concerns trump and the litigation must stop after a first collateral attack.”). 

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brought under § 2255. Accordingly, they too are properly considered to be second or 

successive § 2255 claims.3

 In contrast to those claims, however, Mr. Pham does raise one issue that 

appears to apply only to restitution—that the orders of restitution were unlawful 

under the Supreme Court’s recent decision in Southern Union Co. v. United States, 

132 S. Ct. 2344 (2012). As stated above, in light of Hernandez, a reasonable jurist 

could debate whether this claim could ever be brought under § 2255 and therefore 

whether the district court’s procedural disposition was correct. But we deny a COA 

on Slack’s other prong, because no reasonable jurist could debate whether the 

argument presents a valid claim of the denial of a constitutional right. 

 In Southern Union Co., the Supreme Court applied Apprendi v. New Jersey, 

530 U.S. 466 (2000), to the imposition of criminal fines, holding that a jury, and not 

a judge, must determine the facts that set the maximum amount of a criminal fine. 

132 S. Ct. at 2348-49, 2357. Mr. Pham assumes that Southern Union Co. must apply 

to his restitution orders. In this circuit, however, restitution is a civil remedy 

designed to compensate victims, not a criminal penalty. See United States v. 

 

3

 Moreover, even if a reasonable jurist could dispute the procedural disposition 

of these claims, a COA still would not issue because no reasonable jurist could 

dispute whether the claims make a substantial showing of the denial of a 

constitutional right. The special assessment statute, 18 U.S.C. § 3013, does not 

require that special assessments for multiple offenses must be run “concurrently” or 

somehow are not validly imposed for each offense if the terms of imprisonment are 

imposed concurrently. Moreover, § 3013 does not provide that the special 

assessment is a punishment in lieu of, rather than in addition to, a term of 

incarceration or other penalties also authorized by Congress. 

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Serawop, 505 F.3d 1112, 1123 (10th Cir. 2007) (“Despite plausible arguments from 

other circuits that criminal restitution rests with one foot in the world of criminal 

procedure and sentencing and the other in civil procedure and remedy, in this circuit, 

restitution’s two feet remain squarely planted in the field of compensation and 

remediation.” (brackets, citation, and internal quotation marks omitted)); United 

States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005) (“In the Tenth Circuit, 

restitution is not criminal punishment.”). “We are without power to revisit this 

precedent, absent en banc review.” Serawop, 505 F.3d at 1123. Thus, Southern 

Union Co. is inapplicable. Mr. Pham has failed to establish a valid claim of the 

denial of a constitutional right with regard to the restitution order, and this claim 

deserves no further proceedings. 

Conclusion

 Mr. Pham’s motion to strike his original combined opening brief and 

application for a COA and replace it with an amended brief is granted. The requests 

in the amended brief for oral argument and appointment of counsel are denied. As 

the appeal issues have been decided his in forma pauperis motions are moot. 

In forma pauperis status does not excuse payment of filing and docketing fees, only 

prepayment of those fees. 28 U.S.C. § 1915(a). Mr. Pham is obligated to pay all 

 

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fees. Payment is to be made to the Clerk of the District Court. A COA is denied and 

this matter is terminated. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

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