United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, United States District Judge
matter is before the Court on defendant Jose Aleman's pro
se Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal
Custody (Doc. #106) filed September 7, 2017. For reasons
stated below, the Court overrules defendant's motion and
denies a certificate of appealability.
Tenth Circuit Court of Appeals summarized the procedural
history as follows:
Kansas City police pulled over Jose Aleman for running a stop
sign. After obtaining Aleman's information the officers
discovered an outstanding warrant for his arrest. During the
encounter, the officers obtained permission from Aleman's
passenger, the owner of the car, to search the vehicle and
found a firearm under the driver's seat. A federal grand
jury subsequently indicted Aleman for possession of a firearm
by a convicted felon, a violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2).
Aleman sought to suppress the evidence and testimony
resulting from the stop, arguing that the officers lacked
reasonable suspicion that Aleman had violated the law prior
to the stop, and thus obtained the evidence in violation of
the Fourth Amendment. A magistrate judge heard Aleman's
motion to suppress and recommended that the district court
deny the motion. The district court conducted a second
evidentiary hearing and concluded, like the magistrate judge,
the traffic stop was properly based on a suspected traffic
Order And Judgment (Doc. #105) filed March 2, 2017
at 1-2. At trial, a jury found defendant guilty of possession
of a firearm by a convicted felon. Verdict (Doc.
#73) filed March 30, 2015. The Court sentenced defendant to
87 months in prison. Judgment (Doc. #83) filed
December 8, 2015. He appealed the judgment to the Tenth
Circuit, which affirmed. Notice Of Appeal (Doc. #85)
filed December 21, 2015; Order And Judgment (Doc.
#105) at 2, 9.
September 7, 2017, defendant filed a pro se motion to vacate
his sentence under 28 U.S.C. § 2255. Motion To
Vacate (Doc. #106). Defendant alleges that the
government suppressed evidence that the police officers did
not issue a traffic ticket during the stop that resulted in
his conviction. Memorandum (Doc. #106-1) filed
September 7, 2017 at 1. He argues that the prosecution's
suppression of evidence violated his Due Process rights,
specifically those established in Brady v. Maryland,
373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S.
264 (1959). Id. at 2-4. Defendant also asserts that
the government's withholding of evidence violated his
right to effective assistance of counsel. Id. at
Court applies a stringent standard of review when analyzing
Section 2255 petitions. 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).
Denial Of Due Process
asserts that the government violated Brady, 373 U.S.
83 (1963), and Napue, 360 U.S. 264 (1959), by
withholding evidence that the arresting police officers did
not issue a traffic citation after they stopped
defendant. Memorandum (Doc. #106-1) at 2-4.
To establish a Brady violation, defendant must prove
that (1) the government suppressed evidence; (2) the
suppressed evidence was favorable to the defense; and (3) the
evidence was material. United States v. Wooten, 377
F.3d 1134, 1142 (10th Cir. 2004). Defendant's
Brady claim fails on two grounds.
the government did not suppress evidence that the officers
did not issue a traffic citation during the stop; it
essentially admitted as much. See Transcript Of Motion To
Suppress Evidence (Doc. #94) filed February 4, 2016 at
13. At the suppression hearing, government counsel discussed
a traffic citation in the conditional tense, stating
“if Officer Webb would have given the
defendant a citation.” Id. (emphasis added).
At the same hearing, a police officer stated that he
“didn't have the tickets to prove” what
infractions occurred. Id. at 7. The officer later
appeared to contradict this testimony when he stated that he
wrote a ticket. Id. at 11. Despite this
inconsistency, defendant fails to support his allegation with
detail about what specific evidence the government failed to
disclose. Further, because defendant never received a traffic
citation, he knew that officers did not issue a ticket as a
result of the traffic stop. Raley v. Ylst, 470 F.3d
792, 804 (9th Cir. 2006) (no Brady violation where
defendant knows essential facts suppressed evidence proves);
see also Fields v. Wharrie, 672 F.3d 505, 513 (7th
Cir. 2012) (duty to disclose applies to evidence possessed
exclusively by prosecution and government).
the Court presumes that the government withheld evidence,
defendant fails to establish that the evidence was material,
or show a “reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” United
States v. Brooks, 727 F.3d 1291, 1300 n.7 (10th Cir.
2013) (citation and quotation marks omitted). Defendant
attempts to satisfy the materiality requirement by arguing
that if the government had disclosed the evidence, the Court