United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
November 29, 2016, Dana Huff filed a pro se Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct
Sentence By A Person In Federal Custody (Doc. #120). The
government opposes this motion. Government's Response
To Defendant's Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Doc. #142) filed
September 11, 2017. For reasons stated below, the Court
overrules the motion and denies a certificate of
And Procedural Background
Tenth Circuit Court of Appeals summarized defendant's
relevant criminal conduct and procedural history as follows:
In June 2011, two police officers on a routine patrol in
Kansas City, Kansas observed an Isuzu Rodeo stop for a red
light at an intersection. The vehicle initially stopped left
of the center stripe and in one of the oncoming lanes of
traffic before backing up and moving rightward to a correct
lane. The officers initiated a traffic stop because of the
The two officers approached on either side of the vehicle.
The passenger-side officer, using a flashlight, spotted a
handgun underneath the back of the driver's seat as he
approached. The officer notified his partner that the
individuals in the car - Mr. Huff in the driver's seat
and another man in the passenger seat - were armed and
dangerous. The officers instructed the men in the vehicle to
place their hands on the dash.
The passenger-side officer noticed Mr. Huff move his hands
back and forth near the gear shift in a manner suggesting Mr.
Huff might try to drive away. The officer opened the
passenger door, leaned into the car, and removed the keys
from the ignition. While doing this, the officer noticed a
second firearm - a rifle - wedged between the man in the
passenger seat and the vehicle's center console. The
officers directed Mr. Huff and his passenger to exit the
vehicle, handcuffed them, and put them in the back of their
Mr. Huff was subsequently indicted on one count of being a
felon in possession of a firearm, based on both the handgun
and the rifle. He was also indicted on one count of
possession of an unregistered, short-barreled rifle.
At trial, Mr. Huff, acting pro se, sought to suppress
evidence of the two firearms the officers found in his
vehicle. Mr. Huff argued the officers lacked reasonable
suspicion of criminal activity when searching his vehicle,
and that they unlawfully arrested him without a warrant and
without probable cause to believe he had committed a crime.
After a suppression hearing, the court held the initial stop
to be lawful based on Mr. Huff's traffic infraction. The
court also held that the officer who leaned into the vehicle
to remove the keys from the ignition acted lawfully. However,
the court granted the motion to suppress evidence of both
firearms because, at the time of the arrest the officers had
found no evidence of any legal violation. Specifically, the
court found the officers had not questioned the two
individuals about the firearms before they were arrested, and
the government produced no evidence that the officers knew
then of Mr. Huff's past felony conviction or the
rifle's unregistered status. The government cited no
evidence of probable cause to initiate an arrest, and, so far
as the court could determine, the arrest took place merely
for officer safety concerns and to secure the scene.
Two days after the district court issued its decision, the
government filed a motion to reconsider the suppression of
evidence of the two firearms. The government said it had
failed to specifically identify the ordinance Mr. Huff
violated during argument on the motion to suppress. The
government's motion for reconsideration stated that the
pistol - spotted in plain view in the vehicle by one of the
officers - demonstrated that Mr. Huff had violated Kansas
City, Kansas Municipal Ordinance § 22-177(a)(5), which
provides that “[t]ransporting any pistol, revolver, or
other firearm which is not unloaded and encased in a
container which completely enclosed the firearm”
constitutes unlawful use of a weapon.
The court granted the government's motion for
reconsideration and, in light of the newly presented
ordinance, found that the officers had probable cause for the
arrest. A jury ultimately found Mr. Huff guilty of being a
felon in possession of a firearm, based on the rifle but not
the pistol, and not guilty of being a felon in possession of
an unregistered short-barreled rifle. United States v.
Huff, 782 F.3d 1221, 1222-23 (10th Cir. 2015). The Court
sentenced defendant to 40 months in prison followed by three
years of supervised release. Judgment In A Criminal
Case (Doc. #90) filed August 22, 2013 at 2-3. Defendant
appealed the jury verdict, final judgment and all adverse
rulings by the Court. Notice Of Appeal (Doc. #92)
filed August 8, 2013. In particular, defendant argued that
the Court erred when it (1) reconsidered its ruling on his
motion to suppress and (2) overruled his motion to suppress.
Huff, 782 F.3d at 1224-26. The Tenth Circuit
9, 2016, the Federal Public Defender filed a Section 2255
motion on defendant's behalf based on Johnson v.
United States, 135 S.Ct. 2551 (2015). Motion To
Vacate Sentence (Doc. #112) filed June 9, 2016. The
Court dismissed this motion because the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886
(2017), foreclosed defendant's claim. Order
(Doc. #123) filed May 17, 2017; see Government's
Motion To Dismiss (Doc. #122) filed May 10, 2017.
November 29, 2016, defendant filed a pro se Section 2255
motion.Motion To Vacate (Doc. #120).
Defendant asserts that the Court violated the Federal Rules
of Criminal Procedure by considering the government's
motion to reconsider his motion to suppress (Claim 1) and
erred when it allowed the jury to consider evidence obtained
through an unlawful search and arrest (Claim 2).
Petitioner's Memorandum And Brief Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, OrCorrect
Sentence (Doc. #139) at 2-4, 6-8. ...