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United States v. Calvin

United States District Court, D. Kansas

May 5, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
OSCAR CALVIN, III, Defendant. Civil Action No. 14-2349-KHV

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On February 12, 2013, the Court sentenced defendant to 57 months in prison. This matter is before the Court on defendant's Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody 28 U.S.C. § 2255 (Doc. #125) filed July 17, 2014. For reasons stated below, the Court overrules defendant's motion.

Factual Background

On January 10, 2012, Officer Eckel of the Kansas City, Kansas Police Department was patrolling in the area of 12th Street and Quindaro Boulevard. He stopped a 2001 Ford Taurus for violation of the municipal window tint ordinance. Officer Eckel determined that the driver, Oscar Calvin, III, had a suspended driver's license and no insurance and arrested him.

When Officer Eckel made the traffic stop, defendant illegally parked his vehicle more than 12 inches from the curb. After he arrested defendant, Officer Eckel determined that the vehicle was a traffic hazard and ordered that it be towed. Pursuant to department policy, Officer Eckel then conducted an inventory of the vehicle. When he opened the glove compartment, he discovered a.45 caliber EAA pistol, serial number EA117419. The firearm was loaded with one round in the chamber and nine rounds in the magazine. In 2004, defendant was convicted of attempted second degree murder in Wyandotte County, Kansas, Case Number 03CR1647. As a convicted felon, defendant is prohibited from possessing a firearm.

On January 12, 2012, Detective Jason Sutton went to the Wyandotte County jail to speak with defendant. Detective Sutton advised defendant of his Miranda rights both orally and in writing. Defendant voluntarily waived his rights. After the Miranda warning, Detective Sutton told defendant that officers had found a gun in the glove compartment, and defendant responded, "you're already right, I did have [the gun] for protection." In ruling on defendant's motion to suppress, the Court found that defendant freely and voluntarily made this statement after waiving his Miranda rights.[1]

Tim H. Burdick, an Assistant Federal Public Defender, initially represented defendant. Shortly after the Court ruled on defendant's motion to suppress, Mr. Burdick asked to withdraw because of a breakdown in communication based on defendant's insistence that counsel advance additional arguments related to the motion to suppress. See Motion To Withdraw As Counsel of Record (Doc. #27) filed June 29, 2012. The Court sustained counsel's motion and appointed John M. Duma to represent defendant. Some five days before trial, Mr. Duma asked to withdraw because defendant refused to meet him and sent him a letter which stated that his attorney was "fired." Motion To Determine Status Of Counsel (Doc. #46) filed August 23, 2012. The Court allowed Mr. Duma to withdraw, appointed Jacquelyn E. Rokusek and continued trial.

On September 11, 2012, the Court granted defendant's motion to proceed pro se and appointed Ms. Rokusek as standby counsel. Shortly after trial started on November 8, 2012, defendant asked to reinstate Ms. Rokusek as counsel and plead guilty. Defendant pled guilty under a conditional agreement that allowed him to appeal the denial of his pretrial motions to suppress and dismiss charges for alleged violations of the Speedy Trial Act. On February 1, 2013, defendant filed a pro se motion to withdraw his guilty plea. The Court overruled defendant's pro se motion because he was represented by counsel and the motion lacked substantive merit. On February 12, 2013, the Court sentenced defendant to 57 months in prison.

Defendant appealed his conviction. On November 20, 2013, the Tenth Circuit affirmed. See Order And Judgment (Doc. #122). On May 27, 2014, the Supreme Court denied defendant's petition for a writ of certiorari.

On July 17, 2014, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Specifically, defendant argues that (1) his guilty plea was not voluntary or knowing (Section 12.A. in defendant's motion), (2) Detective Sutton did not advise him of his Miranda rights (12.B. and 12.E.), (3) officers unlawfully stopped and searched his vehicle (12.C. and 12.D.), (4) the jury was unconstitutionally selected (12.H.), (5) all three attorneys provided ineffective assistance because they did not properly investigate the case (12.I.), and (6) he did not receive a speedy trial (12.K.).[2] See Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody 28 U.S.C. § 2255 (Doc. #125) at 5-6.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

I. Voluntariness Of Guilty Plea

Defendant argues that his guilty plea was not voluntary or knowing. He specifically asserts that the Court took the plea in a "rush" in the middle of trial and did not explain to him the nature of the charge, his plea and the consequences of the plea. Motion To Vacate (Doc. #125) at 5. Shortly before sentencing, the Court overruled defendant's request to withdraw his plea. There, the Court noted as follows:

The mere assertion of innocence is insufficient unless defendant presents some credible claim of legal innocence. See United States v. Byrum, 567 F.3d 1255, 1264 (10th Cir. 2009); United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007); see also United States v. Hickok, 907 F.2d 983, 985 n.2 (10th Cir. 1990) (assertion of subjective belief in defendant's own innocence does not mandate withdrawal of guilty plea). Defendant has not presented a credible claim of legal innocence and he does not explain how any allegation of innocence can be reconciled with his sworn admissions of guilt at the change of plea hearing. See United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (mere assertion of legal defense is insufficient; defendant must present credible claim of legal innocence). Defendant ...

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