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United States v. Huff

United States District Court, D. Kansas

December 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DANA J. HUFF, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         On 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 appealability.

         Factual And Procedural Background

         The 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 violation.
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 patrol car.
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 affirmed. Id.

         On June 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.

         On November 29, 2016, defendant filed a pro se Section 2255 motion.[1]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. ...


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