United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATED DISTRICT JUDGE.
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
Factual and Procedural Background
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).
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. 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.
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.
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,  the Tenth Circuit remanded the
case to this Court for re-sentencing. On April 25, 2018,
Petitioner was re-sentenced to 120 months imprisonment.
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.
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
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.
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.” The petitioner must allege facts that, if
proven, would warrant relief from his conviction or
sentence. 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
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.
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.” 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.” Courts can choose which action to take
when a defendant fails to raise the issue on appeal but
attempts to do so under § 2255. 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. In this case, the Court chooses to
simply address the merits.
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.Thus, the Court suppressed
Petitioner's statements and would not allow the
government to introduce those statements at
trial. 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
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.
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. 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.” 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.' ”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.