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United States v. Reyes

United States District Court, D. Kansas

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS REYES, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATED DISTRICT JUDGE.

         On November 9, 2016, a jury found Petitioner Jesus Reyes (“Petitioner”) guilty on three separate counts. Petitioner brings a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 118). In this motion, Petitioner contends that there were multiple errors during his case that require his conviction to be set aside. As will be explained below, the Court denies Petitioner's § 2255 claims and denies the motion without an evidentiary hearing.

         I. Factual and Procedural Background

          In May 2015, Petitioner was pulled over for failing to activate his turn signal more than 100 feet before turning. Petitioner was found with methamphetamine and two firearms. On August 18, 2015, he was indicted on one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).

         Petitioner moved to suppress evidence recovered from his vehicle as well as the statements he made during the stop. The Court held a hearing and ultimately suppressed certain statements, but not the evidence. In sum, the Court found that there was a Miranda violation and suppressed Petitioner's non-Mirandized statement.[1] The Court determined, however, that the physical evidence was still admissible because suppression of such evidence is not a remedy for a Miranda violation and the evidence would have inevitably been discovered.[2]

         Petitioner proceeded to jury trial. On November 7, 2016, a jury convicted Petitioner of one count of possession of methamphetamine with intent to distribute and two counts of being a felon in possession of a firearm. Petitioner was sentenced to 210 months imprisonment.

         Petitioner appealed his sentence to the Tenth Circuit. In his appeal, Petitioner only raised the issue of whether the Court properly sentenced him. He claimed that his previous Kansas conviction of possession with intent to sell did not qualify as a controlled substance offense and thus he should not have been classified as a career offender. Based on an opinion handed down by the Tenth Circuit subsequent to Petitioner's sentence, [3] the Tenth Circuit remanded the case to this Court for re-sentencing. On April 25, 2018, Petitioner was re-sentenced to 120 months imprisonment.

         On August 13, 2018, Petitioner filed this Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. In his motion, Petitioner argues that his conviction should be set aside. He raises several issues. First, he contends that there was a Miranda violation. Second, he contends that an officer falsified evidence under oath. Third, he states that an illegal search and seizure occurred. Fourth, he asserts an ineffective assistance of counsel claim. Finally, he broadly states that there was tampering with the evidence; a violation of the Fourth, Fifth, Fourteenth, and Sixteenth Amendments; and withholding of evidence. As discussed below, based on a review of the record, the Court finds Petitioner's grounds for error to be without merit.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a),

a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,

the judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . . If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[4] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[5] An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.[6]

         III. Analysis

         As noted above, Petitioner asserts several grounds as to why his conviction should be vacated. The United States did not file a response to Petitioner's motion. The Court will address each of Petitioner's arguments below.

         A. Ground One

         Petitioner argues that there was a Miranda violation because the officers failed to read him his rights when he was placed under arrest. Petitioner did not raise this issue on direct review. “Section 2255 is not available to test the legality of matters which should have been raised on appeal.”[7] Generally, a defendant who does not raise an issue on direct appeal is prohibited from raising it in a § 2255 motion “unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.”[8] Courts can choose which action to take when a defendant fails to raise the issue on appeal but attempts to do so under § 2255.[9] If the government does not raise procedural bar (as in this case because the government did not respond to Petitioner's § 2255 motion), the Court can sua sponte raise it or simply address the merits of the § 2255 motion.[10] In this case, the Court chooses to simply address the merits.

         Petitioner, though counsel, previously made this argument in his motion to suppress. As noted above, the Court held a hearing and concluded that there was indeed a Miranda violation.[11]Thus, the Court suppressed Petitioner's statements and would not allow the government to introduce those statements at trial.[12] During trial, Petitioner's statements were not introduced. Thus, the Miranda violation played no part in Petitioner's conviction. Petitioner has not alleged any additional facts that would change the result on collateral review. Accordingly, Petitioner's first ground under § 2255 is without merit.

         B. Ground Two

         Petitioner next asserts that an officer falsified information of evidence under oath, arguing that there was an inconsistency in testimony between the amount of methamphetamine found in Petitioner's possession. Specifically, he states that the officer testified that he found 14 grams and also testified that he found seven grams. Again, Petitioner did not raise this issue on direct appeal.

         Petitioner did, however, raise the issue in his Motion for New Trial filed after trial. The Court set forth the facts from trial and Petitioner's argument in its previous Order denying the motion.[13] The Court noted that during trial, neither Petitioner's counsel nor the prosecutor questioned the inconsistent answer. However, the Court found that “although the answer went unexplained, it is plausible that the jury understood Officer Hornberger to be referring to the one bag that contained 6.98 grams of methamphetamine.”[14] And regardless, the Court determined that although there may have been some inconsistent testimony regarding the amount of grams Petitioner possessed, it “hardly constitutes ‘ample indication of evidence tampering.' ”[15]Petitioner does not allege any additional facts on collateral review that would change the previous result. Accordingly, Petitioner's second ground under § 2255 is without merit.

         C. ...


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